Joint Declaration on Soviet-Japanese Relations
Paragraph 5 of the 1956 Joint Declaration on Soviet-Japanese Relations states: “With regard to those Japanese whose fate is unknown, the USSR, at the request of Japan, will continue its effort to discover what has happened to them.”
Additional Protocol I
Article 33 (1) of the 1977 Additional Protocol I provides: “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 the adverse Party.”
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,
…
Article 7
1. Each State Party shall make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness.
2. Each State Party may establish:
(a) Mitigating circumstances, in particular for persons who, having been implicated in the commission of an enforced disappearance, effectively contribute to bringing the disappeared persons forward alive or make it possible to clarify cases of enforced disappearance …
…
Article 24:
3. Each State Party shall take all appropriate measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains.
…
Article 30
1. A request that a disappeared person should be sought and found may be submitted to the Committee, as a matter of urgency, by relatives of the disappeared person or their legal representatives, their counsel or any person authorized by them, as well as by any other person having a legitimate interest.
2. If the Committee considers that a request for urgent action submitted in pursuance of paragraph 1 of this article:
(a) Is not manifestly unfounded;
(b) Does not constitute an abuse of the right of submission of such requests;
(c) Has already been duly presented to the competent bodies of the State Party concerned, such as those authorized to undertake investigations, where such a possibility exists;
(d) Is not incompatible with the provisions of this Convention; and
(e) The same matter is not being examined under another procedure of international investigation or settlement of the same nature;
it shall request the State Party concerned to provide it with information on the situation of the persons sought, within a time limit set by the Committee.
3. In the light of the information provided by the State Party concerned in accordance with paragraph 2 of this article, the Committee may transmit recommendations to the State Party, including a request that the State Party should take all the necessary measures, including interim measures, to locate and protect the person concerned in accordance with this Convention and to inform the Committee, within a specified period of time, of measures taken, taking into account the urgency of the situation. The Committee shall inform the person submitting the urgent action request of its recommendations and of the information provided to it by the State as it becomes available.
4. The Committee shall continue its efforts to work with the State Party concerned for as long as the fate of the person sought remains unresolved. The person presenting the request shall be kept informed.
UN Declaration on Enforced Disappearance
Article 13(6) of the 1992 UN Declaration on Enforced Disappearance, which spells out States’ obligations in terms of investigating cases of enforced disappearance, provides that such investigations “should be able to be conducted for as long as the fate of the victim of enforced disappearance remains unclarified”.
Plan of Operation for the 1991 Joint Commission to Trace Missing Persons and Mortal Remains
Paragraph 2.1.1 of the Plan of Operation for the 1991 Joint Commission to Trace Missing Persons and Mortal Remains set up in the context of the former Yugoslavia states: “Each party is responsible for compiling a list of its reported missing, as well as a file on each missing [person].” Paragraph 2.2.2 adds: “The adverse party/parties shall take all possible measures (administrative steps and public appeals) to obtain information on the person reported missing.”
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 all necessary assistance in the conduct of searches by Israel within the Gaza Strip and the Jericho Area for missing Israelis … Israel shall cooperate with the Palestinian Authority in searching for … missing Palestinians.
Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 4(9) of Part IV of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines provides: “Every possible measure shall be taken, without delay, to search for … missing persons”.
Argentina
Argentina’s Law of War Manual (1989) provides: “At all times, particularly after an engagement, the parties to the conflict shall, without delay, take all possible measures to search for … missing persons.”
Australia
Australia’s Defence Force Manual (1994) provides: “As soon as possible each party to an armed conflict must search for those reported missing by the enemy.” It adds: “In order to facilitate the search for missing combatants … each protagonist shall record … information for each person detained, imprisoned or otherwise held in captivity for a period of two weeks, or who has died.”
Australia
Australia’s LOAC Manual (2006) states:
9.99 As soon as possible each party to an armed conflict must search for those reported missing by the enemy.
…
9.101 The search. As soon as circumstances permit, but at the latest once active hostilities have ceased, all protagonists to the conflict shall commence to search to the fullest extent possible for persons reported missing by one of the belligerents …
9.102
Particulars of missing persons. In order to facilitate the search for missing combatants … each of the protagonists shall … record … information for each person detained, imprisoned or otherwise held in captivity for a period of two weeks, or who has died.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Canada
Canada’s LOAC Manual (1999) provides: “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 manual further states: “To facilitate the finding of missing personnel, parties to the conflict shall endeavour to reach agreements to allow teams to search for … the dead from the battlefield areas.”
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of the wounded, sick and shipwrecked:
1. The Geneva Conventions impose certain obligations on Detaining Powers with regard to the burial and reporting of dead personnel belonging to the adverse party. [The 1977 Additional Protocol I] also imposes obligations to search for the missing and to report upon the disposal of the remains of the dead.
2. 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.
3. To facilitate the finding of missing personnel, parties to the conflict shall endeavour to reach agreements to allow teams to search for, identify and recover the dead from battlefield areas. They may also attach to such teams representatives of the adverse party when the search is taking place in areas controlled by the adverse party. While carrying out these duties, members of the teams shall be respected and protected.
Chad
Chad’s Instructor’s Manual (2006) states: “Searches must be carried out to trace missing persons.”
Croatia
Croatia’s LOAC Compendium (1991) instructs local commanders to offer their assistance to the civil authorities in the search for missing persons.
Hungary
Hungary’s Military Manual (1992) provides that one of the requirements after a conflict is to “search for missing persons”.
Indonesia
Indonesia’s Military Manual (1982) provides: “The parties to the conflict should search for missing persons, who are reported by the adverse party, soon after the hostilities cease.”
Israel
Israel’s Manual on the Laws of War (1998) provides that according to the 1977 Additional Protocols, “each party must … search for missing persons of the enemy and try to reach arrangements for the dispatch of search teams”.
Israel
Israel’s Manual on the Rules of Warfare (2006) states that according to the 1977 Additional Protocols “each side is required to search for the enemy’s missing in action and allow access to search parties”.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Kenya
Kenya’s LOAC Manual (1997) provides: “As soon as circumstances permit or, at least, at the end of active hostilities, each Party to the conflict must search for persons who have been reported missing by the adverse Party.”
Madagascar
Madagascar’s Military Manual (1994) states that missing persons must be searched for.
Mexico
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”.
The manual also states that a “series of rules [included in the 1977 Additional Protocol I] concerns the duty to search for the missing”.
Netherlands
The Military Manual (1993) of the Netherlands provides: “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.”
Netherlands
The Military Manual (2005) of the Netherlands states:
Missing persons
As soon as circumstances permit, but in any case immediately after the cessation of hostilities, each party to a conflict must seek the persons listed by the other party as missing.
New Zealand
New Zealand’s Military Manual (1992) provides: “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.”
Peru
Peru’s IHL Manual (2004) 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.”
The manual further states:
As soon as the tactical situation permits, local area commanders should cooperate with the civilian authorities, with a view to restoring normal conditions for the population. This involves carrying out the following activities.
a. Emergency cooperation
The purpose of emergency cooperation is to save lives by:
(1) searching for victims and missing persons;
…
Cooperation can be spontaneous and organized locally at the lowest command levels, with the assistance, both at sea and on land, of civilians and civilian organizations, such as the components of the International Red Cross and Red Crescent Movement.
Peru
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.”
The manual also states:
As soon as the tactical situation permits, local area commanders should cooperate with the civilian authorities, with a view to restoring normal conditions for the population. This involves carrying out the following activities.
a. Emergency cooperation
The purpose of emergency cooperation is to save lives by:
(1) searching for victims and missing persons;
…
Cooperation can be spontaneous and organized locally at the lowest command levels, with the assistance, both at sea and on land, of civilians and civilian organizations, such as the components of the International Red Cross and Red Crescent Movement.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states: “After the termination of combat operations the division commander in addition to routine measures shall take steps to search for the … missing, regardless of what forces they belong to.”
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.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Protection of Missing Persons (Article 33 of [the 1977] 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.
Spain
Spain’s LOAC Manual (1996) states that the relevant provisions relating to the dead apply also to the missing. It also states: “The belligerents shall search for the persons whose disappearance has been notified by the adverse party, who shall communicate all the relevant information concerning them.”
Spain
Spain’s LOAC Manual (2007) states: “Provisions concerning the dead also apply, where appropriate, to missing persons. … Each party to the conflict must endeavour to trace persons reported missing by an adverse party.”
Ukraine
Ukraine’s IHL Manual (2004) states:
“Missing persons” mean persons who are missing during hostilities and whose whereabouts are unknown.
Regarding such persons … as soon as circumstances permit (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.
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.”
Azerbaijan
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) provides:
Art. 28. The appropriate authorities and governmental bodies of the Azerbaijan Republic shall begin the tracing of the persons considered to be missing by the adverse party to the conflict at the first opportunity and at the latest as soon as active military operations are over …
Art. 29. The appropriate authorities and governmental bodies of the Azerbaijan Republic shall ensure that the necessary measures be taken that:
1) information is collected and registered concerning the missing person in all cases irrespective of whether they are detained, in prison or dead.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Law on Missing Persons (2004) states:
A missing person is a person whose family is without news of him/her and/or is reported as unaccounted for, on the basis of reliable information, due to armed conflict which occurred on the territory of the former SFRY [Socialist Federal Republic of Yugoslavia].
The Law also states:
Missing person’s status ceases on the day of identification and the procedure of tracing the missing person is terminated.
In case a missing person is declared to be dead without human remains being found, the tracing process shall not be stopped.
Chad
Chad’s Decree on the Establishment of a Commission of Inquiry (2008) states:
Article 1: A Commission of inquiry has been established for the events that occurred in the Republic of Chad from 28 January to 08 February 2008 and their consequences.
Article 2: The mission of the commission of inquiry is to find and provide information about people reported missing … As such, it is responsible for the following tasks:
- receive, hear or interview anyone complaining of a case of disappearance of relatives, friends or allies;
- conduct any research that could shed light on the exact circumstances of the disappearance of a person;
- conduct investigations abroad and/or in Chad, particularly in areas that suffered badly from the consequences of the events, in particular Oum Hadjer, Ati, N'Djamena, Massaguet, Bitkine, Mongo, Aboudeïa and Am-Timan;
- produce an inquiry report addressed to the President of the Republic.
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’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].
El Salvador
El Salvador’s Decree Creating the Commission for Tracing Missing Children (2004) establishes
… the Inter-institutional Commission for Tracing Children who Disappeared as a Result of the Armed Conflict in El Salvador … which has the objective to collaborate with the public institutions involved with or in charge of the protection of children in the search for the children who have become involuntarily separated from their families, and to further the reunification with their close relatives based on the best interests of the child.
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. 2.- The Commission shall have as its main objective to investigate and determine the whereabouts and condition of girls and boys that went missing during the internal armed conflict in El Salvador … .
Art. 3.- The Commission shall have the mandate to:
a) Investigate of its own accord or upon request by any person and to receive information on the disappearances of girls and boys during the internal armed conflict;
…
f) Promote coordination with public institutions and the participation of private, national … organizations, to implement actions that will contribute to determining the whereabouts of the missing girls and boys.
The Decree also states: “The Tracing Commission will carry out its activities in the whole national territory”.
The Decree further states: “The Commission will function for a duration of two years from the entry into force of this Decree [26 April 2010].”
Georgia
Georgia’s Law on Displaced Persons (1996), as amended to 2010, states:
The Ministry of Internally Displaced Persons from Occupied Territories of Georgia [shall] support IDPs in the enjoyment of their rights at temporary dwelling spaces, together with the executive authorities and local self-government bodies, who:
…
j) Take part in the activities related to finding the … disappeared as a result of gross human rights violations.
The Law defines an internally displaced person as:
a citizen of Georgia or a stateless person permanently residing in Georgia, who was forced to leave his place of permanent residency and seek asylum within the territory of Georgia due to a threat to his or his relatives’ life, health and freedom, as a result of an aggression by a foreign state, an internal conflict or massive violations of human rights.
Georgia
Georgia’s Law on Displaced Persons (1996), as amended in 2011, states:
The Ministry supports the IDPs [internally displaced persons] in [the] enjoyment of their rights in … temporary dwelling spaces[,] together with the executive authorities and local self-government bodies, who:
…
f) Take part in the activities related to finding the dead and their graves and disappeared as a result of … gross human rights violations.
The Law, as amended in 2011, defines an internally displaced person from the occupied territory as follows:
Internally displaced person from the occupied territory – IDP is a citizen of Georgia or stateless person permanently residing in Georgia, who was forced to leave his place of permanent residency and seek asylum within the territory of Georgia due to the threat to his life, health and freedom or life, health and freedom of his family members, as a result of aggression of a foreign state, internal conflict o[r] mass violation of human rights or [a]s a result of events determined by … paragraph 11 of article 2 of this Law.
Georgia
Georgia’s Law on Internally Displaced Persons (2014) states:
The Ministry [of Internally Displaced Persons from Occupied Territories, Accommodation and Refugees of Georgia], within its mandate, together with other state bodies[,] shall support an IDP [internally displaced person] to exercise his/her rights. In particular, they shall
…
f) be involved in the process of finding graves of the missing people as well as those who disappeared as a result of massive human rights violations.
The Law defines an internally displaced person as follows:
A citizen of Georgia or a stateless person with a status residing in Georgia shall be considered as an IDP, if he/she was forced to leave his/her permanent place of residence because of threat to his/her or his/her family members[’] life, health or freedom caused by the occupation of the territory by a foreign state, aggression, armed conflict, mass violence and/or massive human rights violations and/or he/she cannot return to his/her permanent place of residence due to the above mentioned reasons.
Guatemala
Guatemala’s Executive Order No. 264-2006 (2006) states:
The Executive Commission for the tracing of Persons who Disappeared during the Internal Armed Conflict is herewith established as a temporary institution and as a consultative and accessory organ … [This Commission] has the objective to coordinate the efforts of its members and of the other State organs and institutions as well as of entities of civil society, in order to establish mechanisms to be used in the process of tracing, investigating and clarifying the whereabouts of the persons who disappeared involuntarily … during the internal armed conflict which ended with the adoption of the Peace Agreements.
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 33, are punishable offences.
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 Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment.
Peru
Peru’s Directive on Investigations of Sites where Human Remains Were Discovered (2009) states:
II. Objective
Updating the norms and guidelines which regulate the investigation process of the Office of the Public Prosecutor as regards sites where human remains have been discovered and the search for persons who disappeared in Peru.
The directive also states:
After the existence of a site where human remains are presumed has been brought to the attention of the prosecutor responsible for the area where the burial site is located, the prosecutor shall immediately initiate the investigation of the case, taking the present directive as guidance.
The directive further states:
The forensic investigation comprises the following stages:
1. Preliminary Forensic Investigation which includes the analysis of the files and the formulation of a working hypothesis that is briefly coordinated with the prosecutor in charge.
2. Location, evaluation and registration of the presumed site where human remains and associated elements have been located.
3. Recovery of the human remains and associated elements.
4. … [T]he safety of the recovered evidence (safekeeping).
5. Forensic analysis of the human remains and associated evidence in a laboratory.
6. Analysis of the ante-mortem and post-mortem information with a view to identifying the body or bodies.
7. Genetic analysis of the human remains to identify family members.
8. Drafting of the final forensic report which must be comprehensive.
Spain
Spain’s Law on the Victims of the Civil War and the Dictatorship (2007) states:
The public administrations, within their competence, shall facilitate the search for, localization and identification of persons who disappeared during the Civil War or during the subsequent political repression and whose whereabouts are unknown, if direct descendants of victims make such a request.
United States of America
The US National Defense Authorization Act for Fiscal Year 2010 (2009) provides for the following authorization:
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.
…
‘‘(c) TREATMENT AS MISSING PERSONS.—Each unaccounted for person covered by subsection (a) shall be considered to be a missing person for purposes of the applicability of other provisions of this chapter to the person.
Zimbabwe
In Zimbabwe, domestic legislation on missing persons outside armed conflict empowers judicial officers to compel police officers to search for a missing person. The Report on the Practice of Zimbabwe states that this demonstrates that the authorities in Zimbabwe believe that missing persons, even in armed conflict, should be searched for.
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
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.
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 “process of search for missing persons”.
Botswana
The Report on the Practice of Botswana states that there is a duty on all parties to armed conflicts to search for persons reported missing.
Croatia
The main task of the Commission for Tracing Persons Missing in War Activities in the Republic of Croatia, established by the Croatian Government in 1991, was to collect and process the information about civil and other persons missing from the territory of Croatia during the war. In 1993, a new Commission, the Commission for Detained and Missing Persons, replaced the one established in 1991, yet with the same task.
Djibouti
In 2011, in the History and Geography Textbook for 9th Grade, Djibouti’s Ministry of National Education and Vocational Training, under the heading “Terminology”, defined a “missing person” as a
[p]erson whose relatives have lost any trace of him/her and/or who has, on the basis of the available information, been reported missing in the context of an armed conflict, in other situations of violence or in other situations requiring the intervention of a neutral and independent intermediary.
The ministry also states: “Parties to the conflict shall search for persons reported missing by the adverse Party.”
El Salvador
In 2002, in its second periodic report to the Committee on the Rights of the Child, El Salvador stated: “By 1996 a total of 323 children had been recorded as having disappeared as a result of the armed conflict.”
El Salvador
In 2006, in its written replies to the issues raised by the Committee on the Rights of the Child with regard to El Salvador’s initial report under the Optional Protocol on the Involvement of Children in Armed Conflict, El Salvador stated:
Information on measures taken to implement the 2005 decision of the Inter-American Court of Human Rights in the case of the Serrano Cruz sisters vs. El Salvador, including but not limited to the establishment of a Commission to determine the whereabouts of children who disappeared during the armed conflict.
The Inter-American Court of Human Rights ruled that the State could comply with the corrective measure it ordered through the Inter-institutional Commission to Search for Children who Disappeared owing to Armed Conflict in El Salvador, provided that that body met the criteria established, or could establish a new commission that met those conditions. Realizing that the President’s brainchild met the requirements, the State decided to pursue the first option.
It therefore began taking administrative steps with the appropriate bodies to provide the Commission with space to work in and funding that had not been included in the State budget so that it could carry out its assigned tasks.
El Salvador
In 2007, in its second periodic report to the Committee against Torture, El Salvador stated:
The Ministry of Foreign Affairs established a Human Rights Department within the Directorate-General of Legal Affairs, and set up the Inter-Agency Commission on the search for children who disappeared during the armed conflict in El Salvador.

[footnote in original omitted]
El Salvador
In 2008, in its third and fourth periodic reports to the Committee on the Rights of the Child, El Salvador stated:
With regards to missing children, the State set up an Inter-Institutional Commission to search for children who disappeared owing to armed conflict in El Salvador, through Executive Order No 45 of 5 October 2004. This [Commission] began work on 13 June 2005, with the aim of cooperating with public institutions with involvement in or responsibility for child protection in the quest for children who were involuntarily separated from their families during that period in El Salvador. … In accordance with Article 4 of the Executive Order mentioned above, the Inter-Institutional Search Commission can also call on the cooperation and backup of other public institutions to help achieve its goal, … and also private institutions set up to achieve the aims of this Commission.
The report also states:
383. As far as field activities are concerned … [a] logistical plan has been developed for collecting data, including the processing of special files for obtaining specific data, the planning of field trips and meetings when experiences gained as a result of the various forms of fieldwork are compared to establish progress in cases. … The fieldwork includes interviews with the civilian population and also with serving and retired military personnel, with state officials, with officials of national … institutions, such as the Salvadoran Red Cross … , from which valuable and important information has been obtained.
384. The National Civil Registry (RNPN) offers significant help in resolving cases assigned to it because it provides data on people related to case investigations, which makes it easier to locate them so that the relevant interviews can be carried out. As far as documentary investigations are concerned, visits have been carried out, obtaining access to the archives of various state institutions and mass media, where valuable information has been found and even photographs in some cases. Special emphasis must be placed on the conscientious and effective work being carried out by the Inter-Institutional Commission to search for children who disappeared owing to armed conflict. …
385. … Various search requests have been received for cases relating to the armed conflict …
386. The achievements of the Inter-Institutional Commission to search for children who disappeared owing to armed conflict since it first started work may be measured by its initial result of 46 cases resolved, which have led to 22 reunions taking place.

[footnote in original omitted]
El Salvador
In 2009, in its written replies to the Committee against Torture concerning its second periodic report, El Salvador stated:
4. Indicate:
a) what have been the measures adopted by the State to find persons disappeared, including children, during the armed conflict of 1980 to 1992;
b) If a national commission, with sufficient resources and functions, has been instituted;
…
…
7. With regard to subparagraphs a) and b), concerning girls and boys disappeared during the internal armed conflict, the Salvadoran State created through Executive Decree No. 45 of 5 October 2004, published in Official Journal No. 45, Volume No. 365 of 6 October 2004, the Inter-institutional Commission for the Tracing of Boys and Girls Missing as a Result of the Armed Conflict in El Salvador, which initiated its work in September 2005 … .
8. The period of validity of this Decree and of the extension of the [Commission’s] mandate terminated on 31 May 2009, having resolved to the date 70 cases out of 212 total search requests, 51 of which were directly related to the armed conflict … ; having achieved, in addition, 29 family reunions despite not having the necessary financial resources to carry out the work for which it was created and thus not accomplishing all that was required by the Inter-American Court of Human Rights in the Case of the Serrano Cruz Sisters versus El Salvador.
9. Starting on 1 June 2009, El Salvador initiated a new phase in its history … ; and it is in this context that the Commission finds itself in a process of restructuring and redefinition that have led to a temporary suspension of the tasks entrusted to it, which will be taken up once again under the new vision of the Salvadoran State.
El Salvador
In 2009, in its written replies to the Committee on the Rights of the Child concerning its third and fourth periodic reports, El Salvador stated in regard to the progress made and the current situation of the search for children who disappeared during the internal armed conflict:
58. The so-called “Inter-institutional Commission to search for children who disappeared during the Salvadoran armed conflict” operated for four years until ceasing to exist on 31 May 2009.
59. Although the Inter-institutional Commission recorded some achievements, El Salvador recognizes that the Commission did not meet the standards required by the Inter-American Court of Human Rights in its judgement in the case of the sisters Ernestina and Erlinda Serrano Cruz, particularly with respect to the need for greater investigative resources in the search for children, guarantees of the independence of the Commission’s members, and representation of the victims in the Commission.
60. The Association for the Search for Disappeared Children … petitioned the Legislative Assembly of El Salvador on a number of occasions for the enactment of a legislative decree establishing a national search commission. However, these petitions were not approved during the Assembly’s various proceedings.
61. Accordingly, El Salvador, through its new Executive, will promote the establishment by executive decree of a national search commission, respecting the standards for such a commission required by the Inter-American Court of Human Rights. The Minister for Foreign Affairs has informed the Association for the Search for Disappeared Children and the Inter-American Commission on Human Rights of this decision – the latter, at a hearing on five cases of disappeared children held in Washington, D.C. on 6 November 2009. The Ministry of Foreign Affairs has formulated a draft executive decree for the establishment of a national search commission, which is currently in the review phase and can be expected to be adopted in the reasonably near future.
62. In addition to the above decision, El Salvador, through its Minister for Foreign Affairs, has established an official dialogue with the Association for the Search for Disappeared Children, in furtherance of its obligations to comply with the judgement in the case of the Serrano Cruz sisters and with the Court’s demands in other cases of disappeared children. …
63. At the previously mentioned hearing of 6 November 2009 before the Inter-American Commission on Human Rights, El Salvador radically altered its former positions regarding the problem of children who disappeared during the armed conflict. It recognized the existence of a pattern of child disappearances during that period, … and promised to endeavour to discharge in good faith its international human rights obligations in this matter.
…
65. These changes hold out the prospect of a historic breakthrough in the search for disappeared children.
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 that practices such as the enforced disappearance of persons took place in the context of the internal armed conflict, causing profound suffering to the affected families. …
62. … [I]n a public act of reparation … , the President of El Salvador signed an Executive Decree for the creation of the “National Commission for Tracing Boys and Girls Missing during the internal armed conflict” in accordance with the standards required by the Inter-American Court of Human Rights … .
63. Furthermore, there has recently been important case law of the Constitutional Division of the Supreme Court of Justice, which in
Habeas Corpus proceedings have extended the right to judicial protection of victims of enforced disappearance and transferred different cases to the Office of the Public Prosecutor for the investigation of these. In this respect, the Constitutional Division has held that a judgment against the defendant … [in
habeas corpus proceedings] cannot have an immediate restorative effect. … [T]hus, the duty to investigate and establish the material situation of disappeared persons would fall to the Office of the Public Prosecutor, without the need for the act to have been previously classified as an offence.

[footnote in original omitted]
In its written replies, El Salvador further stated:
66. The Inter-institutional Commission for the Tracing of Boys and Girls Missing as a Result of the Armed Conflict in El Salvador resolved 70 cases out of the 212 registered by it while it was in force (from October 2004 to 31 May 2009). Among the resolved cases, 51 were directly related to the armed conflict, … which took place between … [1980] and 1992. Nevertheless, the Inter-American Court of Human Rights, in the resolutions on supervision of the implementation of the judgement in the case of the Ernestina and Erlinda Serrano Cruz sisters, kept open the follow-up item, which ordered the creation and functioning of the above-mentioned Commission, as it considered that it did not meet the standards of independence, resources and legal capacity necessary to establish the whereabouts of victims of disappearances.
67. As a result, on 18 January 2010 Executive Decree No. 5, which gave legal life to the current “National Commission for Tracing Boys and Girls Missing during the internal armed conflict”, was published in the Official Journal. The mandate of this Commission is to establish the whereabouts of boys and girls victims of disappearance during the internal armed conflict, previously taking into account the standards mentioned by the Inter-American Court of Human Rights for its functioning. This Commission, … which will be instituted in July 2010, will have within its functions the investigation of the disappearance of boys and girls during the internal armed conflict, … and giving momentum to processes for the search of disappeared boys and girls.
Germany, Federal Republic of
At the CDDH, the Federal Republic of Germany stated that the draft rule that each party to the conflict should try to obtain information on missing persons would meet a “fundamental humanitarian need, which was not yet fully and explicitly covered by existing treaty obligations”.
Germany
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.
Guatemala
In 2003, in its fourth periodic report to the Committee against Torture, Guatemala stated:
As recommended by the Historical Clarification Commission which arose out of the peace agreements, a National Commission to Search for Missing Children has been set up. It is supported by the Office of the … [Ombudsman] for Human Rights and is made up of a number of bodies that work in coordination, including: the Human Rights Office of the Archdiocese of Guatemala, the Office of the Children’s Ombudsman, the Asociación Casa Alianza Guatemalateca, the Liga Guatemalteca de Higiene Menta (Guatemalan mental health league), the Grupo Monseñor Romero, the Legal Action Centre for Human Rights, the Widows’ National Coordinating Committee, the Mutual Support Group, the Rigoberta Menchú Foundation, the Asociación Dónde están los Niños y las Niñas (Where are the children association) and the Centro de Investigación Internacional de Derechos Humanos (International human rights research centre). The commission’s mission is to support, promote and reinforce efforts to document cases, track down children and reunite families; it will also give impetus to efforts to obtain justice, assistance and reparation, and to legal actions to help along the searches for missing children.
Iraq
In 2011, Iraq’s Ministry of Human Rights issued a press release entitled “T[h]e Minister of Human [R]ights meets the head of the ICRC and discusses … the file of missing Kuwaitis”, which stated:
[T]he [M]inister [of Human Rights] expressed [the] gratitude of the [R]epublic of Iraq to the ICRC for its efforts in Iraq and his wishes for the continuation of such cooperation …
The [M]inister also expressed his hope to obtain support in the file of missing Kuwaitis that Iraq looks forward to finaliz[ing, it] being a humanitarian commitment before being a legal one, as the new Iraq is working hard with all possible means to apply humanitarian standards in all its activities. … The [M]inister said that he expressed to the [G]overnment of Kuwait his keenness to finalize this file once and for all.
Iraq
In 2011, Iraq’s Ministry of Human Rights issued a press release entitled “The [M]inistry of Human [R]ights signs an MOU with the ICRC”, which stated:
[T]he [M]inister of [H]uman [R]ights said that the aim of [the] signing of this MOU is to strengthen the capacity of t[h]e Zubair [C]enter in Basrah to enhance the process of dealing with the remains of martyrs and to develop technologies required to preserve such remains.
He added that the history of cooperation between Iraq and the ICRC [goes] back to 1980[,] stating that it is imperative that Iraq is working to continue with such cooperation through provision of technologies and equipment and preparations of t[he M]inistry to deal with missing Iraqis[’] and Iranian[s’] files.
He indicated that such preparations require the readiness of [the] Zubair [C]enter in the fi[el]d of identifying the remains through DNA testing and preparing the center to receive such remains, expressing his hope that the ICRC would consider Iraq’s positive response regarding the Kuwaiti and Iranian files and the future efforts in this course. He expressed the [M]inistry[’s] readiness to deal with any piece of information from the American or Kuwaiti sides regarding this issue in addition to [the M]inistry’s own efforts.
Iraq
In 2011, Iraq’s Ministry of Human Rights issued a press release entitled “The Minister of Human Rights discusses with the ICRC a proposal related to detention institutions”, which stated:
[T]he Minister of Human Rights had discussed with … the head of [the] ICRC delegation to Iraq the excavations taking place in Fao city and the search for the remains of Iranians [gone] missing during the first [G]ulf war and the possibility of involving the Iranian side which offered its cooperation in this field.
Iraq
In 2012, Iraq’s Ministry of Foreign Affairs issued a press release concerning the file on the missing, which stated:
The technical committee [created] to discu[ss] [the issue of] missing Iraqis and Kuwaitis had held its 76th meeting in Kuwait [on] 16–19 of September 2012 [in] the presence of all committee members (Iraq, Kuwait, the US, the UK, and France) under the supervision of the ICRC, which chaired the meeting. The activities of the [Iraqi] Human Rights [M]inistry were discussed, mainly th[o]se related to excavation and exploration in proposed burial locations of Kuwaiti missing citizens, and preparations for excavating in new burial locations in [the] Al-Khamisiyah area in Dhi Qar province. The meeting also discussed the necessity of contacting Iraqi witnesses in[side] and out[side] of Iraq who have information of missing Kuwaitis, and [of] making use of updated technologies like aerial photography and GPR devices in [the] exploration of burial sites, demanding member countries (US, UK, and France) to provide expertise and training in the field. During the meeting, [it was] stress[ed] that [the] ICRC shall provide [the] most updated information adopted in forensic medicine and analysis of information, and [the] Kuwaiti side [was asked] to explore new areas where potential Iraqi missing persons might be buried.
Ireland
In 2009, Ireland’s Minister for Foreign Affairs, in a written response to a question on the situation in Sri Lanka, stated:
As I have stated on many occasions in this House, I am deeply concerned about the situation in Sri Lanka. The immediate priority is still the welfare of the 280,000 or so Internally Displaced Persons (IDPs) currently being held in IDP camps in the north of the country. There is urgent need … for missing IDPs to be accounted for and reunited with their families.
Israel
According to the Report on the Practice of Israel, it is the policy of the Israeli authorities to conduct ongoing searches for members of the Israel Defense Forces who are missing in action.
Jordan
The Report on the Practice of Jordan states that Jordan recognizes that it has a special duty to search for persons reported missing.
Kuwait
According to the Report on the Practice of Kuwait, it is the
opinio juris of Kuwait that missing persons must be searched for in order to establish their fate and enable their return.
Malaysia
According to the Report on the Practice of Malaysia, search operations for missing persons are initiated upon receipt of information on the missing person and continue for seven years.
Nepal
In 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated: “HMG [His Majesty’s Government] assures full cooperation to establish the fate and whereabouts of reported missing persons.”
Netherlands
In 1988, in a report on 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 organization of searches” with regard to missing persons.
Peru
According to the Report on the Practice of Peru, during the international armed conflict between Peru and Ecuador in 1995, Peru carried out search and rescue operations to recover missing Peruvian aircraft crews.
Poland
In 2005, in a cooperation agreement concluded between the Polish Minister of National Defence and the Polish Red Cross, the Government of Poland stated:
1. Organizational units of the Ministry of National Defence and the organizational units subordinated to the Minister of National Defence or supervised by him, hereinafter referred to as the national defence agency, and the Polish Red Cross, hereinafter referred to as the PRC shall cooperate to:
…
4) search for persons missing as a result of armed conflicts.
Russian Federation
According to the Report on the Practice of the Russian Federation, a great effort has been made to determine the fate of Japanese persons who were reported missing in the USSR, but only during the period of
perestroika. The Joint Soviet-Japanese Commission and the Japanese Union of ex-Prisoners have made some progress in this field.
According to the report, there are no specific rules in the Russian Federation or in other countries of the Commonwealth of Independent States to regulate the search for missing persons. In practice, private organizations have assumed State functions. Representatives of the Soldiers’ Mothers Committee, for example, have gone to Chechnya with the mothers of missing soldiers to find out what happened to their sons.
Serbia and Montenegro
In 2003, in its initial report to the Human Rights Committee, Serbia and Montenegro stated:
Serbia and Montenegro is particularly interested in solving the question of missing and abducted persons from Kosovo and Metohija in view of the responsibility of the United Nations, i.e. UNMIK under UNSC resolution 1244. Clarifying the fate of all missing persons from Kosovo and Metohija is an important step towards establishment of lasting peace and reconciliation.
Switzerland
In 2009, in its Report on Foreign Policy, Switzerland’s Federal Council stated:
Programmes on the civilian promotion of peace will in the future also seek to focus on topics necessary for ensuring the sustainability of peace processes and considered a priority for Switzerland, such as … dealing with the past.
In the context of processes for dealing with the past, Switzerland, for example, supports countries concerned in the realization of their obligations concerning … the search for missing persons … In 2008, it notably engaged in the protection of archives in Guatemala and in the treatment of the issue of missing persons in the Balkans.
Switzerland
In 2011, Switzerland’s Federal Council issued a Communiqué on the continuation of measures promoting peace and human security 2012–2016, which stated: “Switzerland will also concretely accompany the efforts of governments and civil society actors, in a sexospecific manner, to find missing persons (exhumations)[.]”
The Communiqué also stated:
Humanitarian dialogue in the North Caucasus
…
… The
Centre for Civil Assistance to Search for Missing People, created in 2006, collects data about missing persons. A list of about 7000 names have been made public on internet. … Financed and assisted by the Confederation, the implementation of the project is guaranteed by two Russian non-governmental organizations and by the foundation Swisspeace.
Switzerland
In 2012, in its Report on Foreign Policy 2011, Switzerland’s Federal Council stated: “Switzerland has also continued its efforts – with the support of the authorities and civil society – to improve the human security of the civilian populations in the North Caucasus, in particular through the search for persons who went missing during the armed conflicts in the 1990s.”
Uganda
In the Annexure to the Agreement on Accountability and Reconciliation signed between the Government of the Republic of Uganda and the Lord’s Resistance Army/Movement in 2007, the contracting Parties,
[h]aving signed the Principal Agreement by which the parties committed themselves to implementing accountability and reconciliation with respect to the conflict;
…
[decided that t]he Government shall by law establish a body to be conferred with all the necessary powers and immunities [to inquire into the past and related matters], whose functions shall include:
…
(i) to gather and analyse information on those who have disappeared during the conflict.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support the principle that … each party to a conflict should search areas under its control for persons reported missing, when circumstances permit, and at the latest from the end of active hostilities.”
United States of America
In 1995, during a debate in the UN Security Council concerning Bosnia and Herzegovina, the United States stated, with respect to the civilians missing and unaccounted for: “We have a responsibility to investigate, to find out what we can.”
UN Security Council
In a resolution adopted in 2003 on the situation in Iraq, the UN Security Council:
Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the “Authority”),
…
6.
Calls upon the Authority and relevant organizations and individuals to continue efforts to locate, identify, and repatriate all Kuwaiti and Third-State Nationals or the remains of those present in Iraq on or after 2 August 1990, as well as the Kuwaiti archives, that the previous Iraqi regime failed to undertake, and, in this regard,
directs the High-Level Coordinator, in consultation with the International Committee of the Red Cross and the Tripartite Commission and with the appropriate support of the people of Iraq and in coordination with the Authority, to take steps to fulfil his mandate with respect to the fate of Kuwaiti and Third-State National missing persons and property.
UN Security Council
In a resolution adopted in 2004 on the situation in Cyprus, the UN Security Council welcomed “the report of the Secretary-General of 26 May 2004 (S/2004/427) on the United Nations operation in Cyprus, and in particular the call to the parties to assess and address the humanitarian issue of missing persons with due urgency and seriousness”.
UN Security Council
In a resolution adopted in 2005 on the situation in Cyprus, the UN Security Council:
Reiterating its call to the parties to assess and address the humanitarian issue of missing persons with due urgency and seriousness, and welcoming in this regard the resumption of the activities of the Committee on Missing Persons since August 2004.
UN Security Council
In a resolution adopted in 2006 on the situation in Cyprus, the UN Security Council:
Reiterating its call to the parties to assess and address the humanitarian issue of missing persons with due urgency and seriousness, and welcoming in this regard the resumption of the activities of the Committee on Missing Persons since August 2004, as well as the appointment by the Secretary-General of a Third Member who will assume his duties in July 2006.
UN Security Council
In a resolution adopted in 2006 on the situation in Cyprus, the UN Security Council reiterated “its call to the parties to assess and address the humanitarian issue of missing persons with due urgency and seriousness”.
UN Security Council
In a resolution adopted in 2007 on the situation in Cyprus, the UN Security Council:
Reiterating its call to the parties to assess and address the humanitarian issue of all missing persons with due urgency and seriousness, and welcoming in this regard the progress and continuation of the important activities of the Committee on Missing Persons; expressing the hope that this process will promote reconciliation between the communities.
UN Security Council
In 1996, in a statement by its President on the situation in Bosnia and Herzegovina, the UN Security Council stated:
The Security Council is concerned that endeavours by the relevant international authorities to identify the fate of the missing by,
inter alia, carrying out exhumations has met with limited success largely due to obstruction by Republika Srpska. It notes with concern that the fate of only a few hundred missing persons has so far been established.
UN General Assembly
In a resolution adopted in 2004 on missing persons, the UN General Assembly:
2. Calls upon States that are parties to an armed conflict to … account for persons reported missing…
…
4. Also reaffirms that each party to an armed conflict, as soon as circumstances permit and, at the latest, from the end of active hostilities, shall search for the persons who have been reported missing by an adverse party;
…
6.
Requests States to pay the utmost attention to cases of children reported missing in connection with armed conflicts and to take appropriate measures to search for and identify those children.
UN General Assembly
In a resolution adopted in 2006 on missing persons, the UN General Assembly:
2. Calls upon States that are parties to an armed conflict to … account for persons reported missing…
…
4. Also reaffirms that each party to an armed conflict, as soon as circumstances permit and, at the latest, from the end of active hostilities, shall search for the persons who have been reported missing by an adverse party;
…
7.
Requests States to pay the utmost attention to cases of children reported missing in connection with armed conflicts and to take appropriate measures to search for and identify those children.
UN Commission on Human Rights
In a resolution adopted in 1987 on the question of human rights in Cyprus, the UN Commission on Human Rights called for the tracing of missing persons without further delay.
UN Commission on Human Rights
In a resolution adopted in 2002 on missing persons, the UN Commission on Human Rights:
3. Also reaffirms that each party to an armed conflict, as soon as circumstances permit and at the latest from the end of active hostilities, shall search for the persons who have been reported missing by an adverse party;
4. Calls upon States which are parties to an armed conflict to take immediate steps to determine the identity and fate of persons reported missing in connection with the armed conflict;
5
. Requests States to pay the utmost attention to cases of children reported missing in connection with armed conflicts and to take appropriate measures to search for and identify those children.
UN Commission on Human Rights
In a resolution adopted in 2004 on missing persons, the UN Commission on Human Rights:
1. Urges States strictly to observe and respect and ensure respect for the rules of international humanitarian law, as set out in the Geneva Conventions of 12 August 1949 and, for States parties, the Additional Protocols thereto of 1977;
2. Calls upon States that are parties to an armed conflict to take all appropriate measures to prevent persons from going missing in connection with armed conflict and to account for persons reported missing as a result of such a situation;
3. Reaffirms the right of families to know the fate of their relatives reported missing in connection with armed conflicts;
4. Also reaffirms that each party to an armed conflict, as soon as circumstances permit and at the latest from the end of active hostilities, shall search for the persons who have been reported missing by an adverse party;
5. Calls upon States that are parties to an armed conflict to take immediate steps to determine the identity and fate of persons reported missing in connection with the armed conflict;
6. Requests States to pay the utmost attention to cases of children reported missing in connection with armed conflicts and to take appropriate measures to search for and identify those children;
7. Invites States which are parties to an armed conflict to cooperate fully with the International Committee of the Red Cross in establishing the fate of missing persons and to adopt a comprehensive approach to this issue, including all practical and coordination mechanisms as may be necessary, based on humanitarian considerations only;
8.
Urges States and encourages intergovernmental and nongovernmental organizations to take all necessary measures at the national, regional and international levels to address the problem of persons reported missing in connection with armed conflicts and to provide appropriate assistance as requested by the concerned States.
UN Commission on Human Rights
In a resolution adopted in 2005 on the right to the truth, the UN Commission on Human Rights recalled that “article 33 of Additional Protocol I provides that the parties to an armed conflict shall search for the persons who have been reported missing, as soon as circumstances permit”.
UN Commission on Human Rights
In a resolution adopted in 2005 on technical cooperation and advisory services in Nepal, the UN Commission on Human Rights urged the Government of Nepal:
To take all appropriate measures to clarify the fate of all cases of persons allegedly victims of enforced disappearance, including, where appropriate, taking into account the work of the national committee and international expert bodies in this field.
UN Commission on Human Rights
In 1995, the chairman of the UN Commission on Human Rights called upon the Government of Indonesia to continue its investigation into those persons missing as a result of incidents in Dili.
UN Sub-Commission on Human Rights
In resolutions adopted in 1984 and 1985, the UN Sub-Commission on Human Rights urged that the fate of disappeared persons in the context of the conflict in Guatemala be clarified.
UN Sub-Commission on Human Rights
In a resolution adopted in 1987, the UN Sub-Commission on Human Rights expressed concern at the fate of the missing in Cyprus and urged the immediate tracing of these persons.
UN Expert for the Special Process on Missing Persons in the Territory of the Former Yugoslavia
In 1996, the Expert for the Special Process on Missing Persons in the Territory of the Former Yugoslavia called upon the parties and the international community to intensify their efforts to clarify the fate of missing persons using every possible means, including exhumation of mortal remains where necessary.
Council of Europe Parliamentary Assembly
In a recommendation adopted in 1983 on the situation in Cyprus, the Council of Europe Parliamentary Assembly asked the Committee of Ministers to instruct the Secretary-General of the Council of Europe to undertake all necessary steps to gather information on the events in Cyprus and to investigate the cases of those persons who had disappeared following the invasion by armed forces in 1974.
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 urged the Committee of Ministers to support every effort made to investigate the fate of missing persons.
Council of Europe Parliamentary Assembly
In a recommendation adopted in 1998 on the humanitarian situation of the Kurdish refugees and displaced persons in south-eastern Turkey and northern Iraq, the Council of Europe Parliamentary Assembly invited Turkey to bring to light the fate of missing persons.
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”.
Human Rights Committee
In its concluding observations on the consolidated third, fourth and fifth periodic reports of El Salvador in 2003, the Human Rights Committee stated:
The Committee is sorry that the delegation was unable to explain the Legislative Assembly’s reasons for not approving the establishment of a national commission of inquiry to track down children who disappeared in the conflict (arts. 6, 7 and 24 [of the 1966 International Covenant on Civil and Political Rights]).
The State Party is urged to submit detailed information on the numbers of children found alive and the numbers that died in the fighting. It is also invited to reconsider the establishment of a national commission on disappeared children and a compensation fund for young people who are found.
[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.
[emphasis in original]
European Court of Human Rights
In the Cyprus case in 2001, the European Court of Human Rights found that, in relation to Greek-Cypriot missing persons and their relatives:
136. There has been a continuing violation of Article 2 [of the 1950 European Convention on Human Rights] on account of the failure of the authorities of the respondent State [Turkey] to conduct an effective investigation aimed at clarifying the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances. …
…
150. There has been a continuing violation of Article 5 of the [1950 European Convention on Human Rights] by virtue of the failure of the authorities of the respondent State [Turkey] to conduct an effective investigation into the whereabouts and fate of the missing Greek-Cypriot persons in respect of whom there is an arguable claim that they were in custody at the time they disappeared.
Inter-American Court of Human Rights
In the
Caballero Delgado and Santana case before the Inter-American Court of Human Rights in 1995, the Government of Colombia submitted evidence that it had made several unsuccessful attempts to recover the remains of two missing persons.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
Each belligerent shall search for the persons who have been reported missing by an enemy Party. Such enemy Party shall transmit all relevant information concerning these persons in order to facilitate the searches.
Fédération Internationale des Droits de l’Homme (FIDH)
According to a 1984 report of the FIDH, the Government of Lebanon has established a commission on missing and kidnapped persons.
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, states: “Every possible measure shall be taken, without delay, to search for … 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
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
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
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
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
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
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
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
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.”
Netherlands
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.
Netherlands
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
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.
Russian Federation
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
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
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
South Africa’s LOAC Teaching Manual (2008) states:
Protection of Missing Persons (Article 33 of [1977] 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
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
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 [1949] 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
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
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
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 [1949] 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
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].
Georgia
Georgia’s Law on the Georgia Red Cross Society (2017) states:
Article 4
The [Georgia Red Cross] Society performs its activities in accordance with the Constitution of Georgia, the Geneva Conventions of 12 August 1949 and their [1977 and 2005] Additional Protocols, the present law, other legislative and secondary normative acts and the statute of the Society.
…
Article 7
The Georgia Red Cross Society –
…
j) takes part in tracing operations organized by the International Committee of the Red Cross; sets up relevant services for this purpose[.]
Ireland
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
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
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
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.
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
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.
Algeria
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”.
El Salvador
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.
Netherlands
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.
Philippines
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.
Sri Lanka
In 2012, in a section entitled “Theme area: Human Rights” of its National Plan of Action to Implement the Recommendations of the Lessons Learnt and Reconciliation Commission, which also includes a section entitled “Theme area: International Humanitarian Law Issues”, Sri Lanka’s Government stated:
Recommendation
9.51 – Devise a centralized system of data collection at the national level, integrating all information with regard to missing persons[.]
Activity
Establish an integrated data base to collate information regarding missing persons.
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:
Recognizes, 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.
European Parliament
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.
No data.
No data.
Geneva Convention III
Article 123 of the 1949 Geneva Convention III provides:
A Central Prisoners of War Information Agency shall be created in a neutral country. The International Committee of the Red Cross shall, if it deems necessary, propose to the Powers concerned the organization of such an Agency.
The function of the Agency shall be to collect all the information it may obtain through official or private channels respecting prisoners of war, and to transmit it as rapidly as possible to the country of origin of the prisoners of war or to the Power on which they depend. It shall receive from the Parties to the conflict all facilities for effecting such transmissions.
The High Contracting Parties, and in particular those whose nationals benefit by the services of the Central Agency, are requested to give the said Agency the financial aid it may require.
The foregoing provisions shall in no way be interpreted as restricting the humanitarian activities of the International Committee of the Red Cross, or of the relief Societies provided for in Article 125.
Geneva Convention IV
Article 140 of the 1949 Geneva Convention IV provides:
A Central Information Agency for protected persons, in particular for internees, shall be created in a neutral country. The International Committee of the Red Cross shall, if it deems necessary, propose to the Powers concerned the organization of such an Agency, which may be the same as that provided for in Article 123 of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.
The function of the Agency shall be to collect all information of the type set forth in Article 136 which it may obtain through official or private channels and to transmit it as rapidly as possible to the countries of origin or of residence of the persons concerned, except in cases where such transmissions might be detrimental to the persons whom the said information concerns, or to their relatives. It shall receive from the Parties to the conflict all reasonable facilities for effecting such transmissions.
The High Contracting Parties, and in particular those whose nationals benefit by the services of the Central Agency, are requested to give the said Agency the financial aid it may require.
The foregoing provisions shall in no way be interpreted as restricting the humanitarian activities of the International Committee of the Red Cross and of the relief Societies described in Article 142.
Agreement on Ending the War and Restoring Peace in Viet-Nam
Chapter III of the 1973 Agreement on Ending the War and Restoring Peace in Viet-Nam provided that the parties were to help each other in obtaining information about military personnel and foreign civilians of the parties missing in action and to take any measures as may be required to get information about those missing. The Four-Party Joint Military Commission was to ensure joint action by the parties in implementing this part of the agreement.
Inter-American Convention on the Enforced Disappearance of Persons
Article 12 of the 1994 Inter-American Convention on the Enforced Disappearance of Persons provides:
The States Parties shall give each other mutual assistance in the search for, identification, location, and return of minors who have been removed to another state or detained therein as a consequence of the forced disappearance of their parents or guardians.
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 also cooperate fully with the ICRC in its efforts to determine the identities, whereabouts and fate of the unaccounted for.”
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,
…
Article 15
States Parties shall cooperate with each other and shall afford one another the greatest measure of mutual assistance with a view to assisting victims of enforced disappearance, and in searching for, locating and releasing disappeared persons and, in the event of death, in exhuming and identifying them and returning their remains.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 8 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia provides:
The parties agree to set up a Joint Commission to trace missing persons: the Joint Commission will be made up of representatives of the parties concerned, all Red Cross Organisations concerned and in particular the Yugoslav Red Cross, the Croatian Red Cross and the Serbian Red Cross, with ICRC participation.
Rules of Procedure of the Joint Commission to Trace Missing Persons and Mortal Remains
The 1991 Rules of Procedure of the Joint Commission to Trace Missing Persons and Mortal Remains set up in the context of the former Yugoslavia provides:
Rule 1(2)
… All of the Red Cross organizations concerned … are designated as permanent advisers to the members of the Joint Commission.
Rule 2(1)
The International Committee of the Red Cross (ICRC), acting as a neutral intermediary, shall put at the Joint Commission’s disposal a delegation which will chair the meetings of the Joint Commission.
…
Rule 18(1)
The ICRC shall bring to the Joint Commission’s attention, on its own initiative, any communication, proposal, plan of work or information which might contribute to the efficiency of the Joint Commission’s work.
Plan of Operation for the Joint Commission to Trace Missing Persons and Mortal Remains
The 1991 Plan of Operation for the Joint Commission to Trace Missing Persons and Mortal Remains set up in the context of the former Yugoslavia states:
2.1.1 Each party is responsible for compiling a list of its reported missing, as well as a file on each missing [person] …
2.2.1 Each opened file shall be sent … to the ICRC which shall arrange for it to be forwarded to the party concerned …
2.2.2 … the adverse party/parties shall take all possible measures (administrative steps and public appeals) to obtain information on the person reported missing …
2.2.3 Once the enquiry has been completed, … the form “official request for missing person” with the accompanying documents shall be returned in duplicate to the ICRC, which shall forward them to the party on which the missing person depends.
Joint Declaration by the Presidents of the Federal Republic of Yugoslavia and Croatia
Paragraph 3 of the Joint Declaration by the Presidents of the Federal Republic of Yugoslavia and Croatia (October 1992) states: “The two Presidents further agree that their representatives will provide for an exchange of information on missing persons.”
UN Secretary-General’s Bulletin
Section 9.8 of the 1999 UN Secretary-General’s Bulletin provides: “The United Nations force … shall facilitate the work of the ICRC’s Central Tracing Agency.”
Note. Statements found in military manuals concerning the provision of information through the Protecting Powers, the Central Tracing Agency of the International Committee of the Red Cross or the national Red Cross or Red Crescent societies have been quoted in Rule 117, Section B and are not repeated here.
Bangladesh
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 Law on Missing Persons (2004) states:
The competent authorities of Bosnia and Herzegovina [are to] particularly cooperate with the ICRC, the ICMP [International Commission on Missing Persons], the MPI [Missing Persons Institute] and the Red Cross Society of Bosnia and Herzegovina in accordance with their mandates, with the aim of improving the tracing process.
Chad
Chad’s Decree on the Establishment of a Commission of Inquiry (2008) states:
Article 1: A Commission of inquiry has been established for the events that occurred in the Republic of Chad from 28 January to 08 February 2008 and their consequences.
Article 2: The mission of the commission of inquiry is to find and provide information about people reported missing …
…
Article 5: The President of the Commission may invite States, international institutions and organizations to participate in the work of the Commission of Inquiry as observers.
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’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].
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:
…
f) Promote … the participation of private … international … organizations, to implement actions that will contribute to determining the whereabouts of the missing girls and boys.
The Decree also states: “The Tracing Commission … may communicate and coordinate with international governmental, intergovernmental and nongovernmental organizations in order to execute its mandate.”
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1949 Geneva Conventions, including violations of Article 123 of the 1949 Geneva Convention III and Article 140 of the 1949 Geneva Convention IV, is a punishable offence.
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 Geneva Conventions of 12 August 1949 … is liable to imprisonment.
No data.
Australia
According to the Report on the Practice of Australia, diplomatic correspondence and press releases show that, in 1984, a joint Australian-Vietnamese operation was launched “to search for the remains and resolve the cases” of six Australian personnel listed as “missing in action” in Viet Nam and “to follow up any other case which might subsequently be drawn to its attention”. The report states that the motive for the operation appears to be based primarily on political considerations (i.e. improvement of bilateral relations with Viet Nam).
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 for the “direct cooperation of competent authorities throughout Bosnia and Herzegovina with neighbouring countries, in which the disappearance of a missing person might have occurred”.
El Salvador
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.
Germany
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.
Germany
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”.
Honduras
In 1995, during a debate in the UN Security Council, Honduras stated that it considered it “deplorable that the parties have not fulfilled their commitments to allow the International Committee of the Red Cross and other humanitarian organizations to have access to persons … reported missing”.
Indonesia
In 1995, during a debate in the UN Security Council, Indonesia associated itself “with the demands that … representatives of UNHCR, the ICRC and other international agencies [be granted] unconditional access to persons … reported missing”.
Iraq
In 2009, in its comments on the “status of the Protocols additional to the 1949 Geneva Conventions relating to the protection of victims of armed conflict”, Iraq stated:
1. Iraq acceded to the first [A]dditional Protocol by Law No. 85 of 2001.
2. A working agreement was concluded with the International Committee of the Red Cross (ICRC) that empowered [the] ICRC, with the coordination and cooperation of the Ministry of Human Rights, to carry out its mandate, in accordance with the 1949 Geneva Conventions and its Protocols, to follow up the humanitarian file relating to prisoners, missing persons and the remains of war victims through a number of committees that were established by the Tripartite Commission which was constituted on 8 March 1991. One adjunct to the Commission was the Technical Subcommittee, the members of which include, in addition to Iraq, Kuwait and Saudi Arabia, France, the United Kingdom of Great Britain and Northern Ireland, and the United States of America.
3. Two further committees were established concerning relations with Iran, namely, the Prisoners and Missing Persons Committee, which is a joint Iraq-Iran committee, and the joint Iraq-Iran technical committee that seeks the remains of war victims. Those committees operated up until 2003, after which two memorandums of understanding were concluded. The first, that was signed on 11 June 2008 by Iraq and ICRC, concerned follow-up to the Iraqi and Iranian prisoners file. The second, concluded by Iraq, Iran and ICRC, was signed in Geneva, Switzerland, on 16 October 2008, and concerned oversight of the work of the subcommittees.
Iraq
In 2010, Iraq’s Ministry of Foreign Affairs issued a press release entitled “Foreign [M]inister receives the head of the Iraq program [of the] ICMP”, which stated:
On Feb. 082010, the [Minister of Foreign Affairs] received in his office the head of [the] Iraq program [of] the ICMP [International Commission on Missing Persons] where the [ICMP]’s work program [in Iraq] was discussed … and the necessity of starting an own office in Baghdad to support [the] government’s efforts to solve the issue of the missing persons.
…
Th[e ICMP] is not a specialized UN agency, but rather a non[-]governmental committee concerned with handling issues of missing persons during the Iran-Iraq war, the second [G]ulf war, and the victims [buried in] mass graves during the reign of the ex[-]regime, as well as persons [gone] missing in operations after 2003 due to armed conflicts and terror operations[. Such handling is done] based on DNA traces of the missing persons. During the meeting, prospects of signing a cooperation agreement between Iraq and the ICMP were discussed, [and] both [the] [M]inistries of [H]uman [R]ights and [F]oreign [A]ffairs approved such signature to make use of the organization’s services.
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.
It is worth mentioning that the number of remains received from [the] Iranian side had reached 249, some of them of known and [some of] unknown identities[,] while 52 Iranian remains were handed over to the Iranian side from 2003 until this date[.]
Iraq
In 2011, Iraq’s Ministry of Human Rights issued a press release entitled “T[h]e Minister of Human [R]ights meets the head of the ICRC and discusses … the file of missing Kuwaitis”, which stated:
[T]he [M]inister [of Human Rights] expressed [the] gratitude of the [R]epublic of Iraq to the ICRC for its efforts in Iraq and his wishes for the continuation of such cooperation …
The [M]inister also expressed his hope to obtain support in the file of missing Kuwaitis that Iraq looks forward to finaliz[ing, it] being a humanitarian commitment before being a legal one, as the new Iraq is working hard with all possible means to apply humanitarian standards in all its activities. … The [M]inister said that he expressed to the [G]overnment of Kuwait his keenness to finalize this file once and for all.
Iraq
In 2011, Iraq’s Ministry of Human Rights issued a press release entitled “The [M]inistry of Human [R]ights signs an MOU with the ICRC”, which stated:
[T]he [M]inister of [H]uman [R]ights said that the aim of [the] signing of this MOU is to strengthen the capacity of t[h]e Zubair center in Basrah to enhance the process of dealing with the remains of martyrs and to develop technologies required to preserve such remains.
He added that the history of cooperation between Iraq and the ICRC [goes] back to 1980[,] stating that it is imperative that Iraq is working to continue with such cooperation through provision of technologies and equipment and preparations of t[he] [M]inistry to deal with missing Iraqis[’] and Iranian[s’] files.
He indicated that such preparations require the readiness of [the] Zubair [C]enter in the fi[el]d of identifying the remains through DNA testing and preparing the center to receive such remains, expressing his hope that the ICRC would consider Iraq’s positive response regarding the Kuwaiti and Iranian files and the future efforts in this course. He expressed the [M]insitry[’s] readiness to deal with any piece of information from the American or Kuwaiti sides regarding this issue in addition to [the] [M]inistry’s own efforts.
Iraq
In 2011, Iraq’s Ministry of Human Rights issued a press release entitled “The Min[is]try of Human Rights hands over remains [from the] Iraq-Iran war to the Iranian sid[e]”, which stated:
The Iraqi side, represented by the [M]inistry of [H]uman [R]ights, handed over to Iran the remains of 17 Iranians [on] April 04, 2011 through [the] Al-Shalamja border crossing. … It is worth mentioning that Iran handed over to Iraq 38 remains of Iraqi martyrs, 6 of which were of known identity and [whose] names were published in local media.
The exchange of remains process between the two sides shall continue as soon as such remains are found[,] according to the two MOUs signed by Iraq[,] represented by the Ministry of Human Rights[,] and Iran, in coordi[n]ation with the ICRC.
Iraq
In 2011, Iraq’s Ministry of Human Rights issued a press release entitled “The Minister of Human Rights discusses with the ICRC a proposal related to detention institutions”, which stated:
[T]he Minister of Human Rights had discussed with … the head of [the] ICRC delegation to Iraq the excavations taking place in Fao city and the search for the remains of Iranians [gone] missing during the first [G]ulf war and the possibility of involving the Iranian side which offered its cooperation in this field.
Iraq
In 2012, Iraq’s Ministry of Foreign Affairs issued a press release entitled “Foreign Minister meets UNICEF representatives and chief of ICRC mission in Iraq”, which stated:
The Foreign [M]inister also met with … [t]he head of [the] ICRC delegation to Iraq … Exploration for the remains of missing Iraqi and Iranian LIAs [persons lost in action] in [the] Fao and Majnoun areas, and the work[] of the Iraqi-Iranian-ICRC [tripartite] committee were also discussed.
The [M]inister also demonstrated the results of Iraqi-Kuwaiti discussions during the work[] of the second session of the [H]igh [M]inisterial [C]ommittee, mainly the humanitarian file, assuring the Iraqi-Kuwaiti cooperation is continuing in search of Kuwaiti missing persons and properties, adding that this issue was discussed in detail and several recommendations were put forward to continue the search and turn[] the issue into a bilateral issue under the supervision of the ICRC o[r] UNAMI [UN Assistance Mission for Iraq] if required.
Iraq
In 2012, Iraq’s Ministry of Foreign Affairs issued a press release concerning the file on the missing, which stated:
The technical committee [created] to discu[ss] [the issue of] missing Iraqis and Kuwaitis had held its 76th meeting in Kuwait [on] 16-19 of September 2012 [in] the presence of all committee members (Iraq, Kuwait, the US, the UK, and France) under the supervision of the ICRC, which chaired the meeting. The activities of the [Iraqi] Human Rights [M]inistry were discussed, mainly th[o]se related to excavation and exploration in proposed burial locations of Kuwaiti missing citizens, and preparations for excavating in new burial locations in [the] Al-Khamisiyah area in Dhi Qar province. The meeting also discussed the necessity of contacting Iraqi witnesses in[side] and out[side] of Iraq who have information of missing Kuwaitis, and [of] making use of updated technologies like aerial photography and GPR devices in [the] exploration of burial sites, demanding member countries (US, UK, and France) to provide expertise and training in the field. During the meeting, [it was] stress[ed] that [the] ICRC shall provide [the] most updated information adopted in forensic medicine and analysis of information, and [the] Kuwaiti side [was asked] to explore new areas where potential Iraqi missing persons might be buried.
Italy
In 1995, during a debate in the UN Security Council, Italy supported a resolution aimed at granting representatives of UNHCR, the ICRC and other international agencies unconditional access to persons reported missing.
Nepal
In 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated: “HMG [His Majesty’s Government] assures full cooperation to establish the fate and whereabouts of reported missing persons. HMG will continue to provide cooperation to the ICRC, including the access to all places of detention.”
United Kingdom of Great Britain and Northern Ireland
In 1995, during a debate in the UN Security Council, the United Kingdom stated that it was essential that the ICRC be given full access to those missing from Srebrenica and elsewhere and urged the Bosnian Serb party to comply with its obligations in this respect.
United Kingdom of Great Britain and Northern Ireland
In 2004, in a written answer to a question concerning civilian fatalities in Iraq, the UK Minister of State for Defence stated:
UK forces inform the International Committee of the Red Cross of all confirmed civilian fatalities of which they are aware have been caused, or allegedly caused, by UK forces. The ICRC then endeavours to inform the relatives as soon as practicable.
UN Security Council
In a resolution adopted in 1995 on violations of IHL in the former Yugoslavia, the UN Security Council:
Reiterating its strong support for the efforts of the International Committee of the Red Cross (ICRC) in seeking access to … persons … reported missing and condemning in the strongest possible terms the failure of the Bosnian Serb party to comply with their commitments in respect of such access,
…
2.
Reaffirms its demand that the Bosnian Serb party give immediate and unimpeded access to representatives of the United Nations High Commissioner for Refugees, the ICRC and other international agencies to persons … reported missing.
UN Security Council
In a resolution adopted in 1995 on violations of IHL and of human rights in the former Yugoslavia, the UN Security Council:
Reiterates its strong support for the efforts of the International Committee of the Red Cross (ICRC) in seeking access to … persons … reported missing and calls on all parties to comply with their commitments in respect of such access.
UN Security Council
In a resolution adopted in 2005 on the situation in Western Sahara, the UN Security Council called upon Morocco and the Polisario Front “to continue to cooperate with the International Committee of the Red Cross to resolve the fate of persons who are unaccounted for since the beginning of the conflict”.
UN Security Council
In a resolution adopted in 2005 on the situation in Western Sahara, the UN Security Council called upon the parties “to continue to cooperate with the International Committee of the Red Cross to resolve the fate of persons who are unaccounted for since the beginning of the conflict”.
UN General Assembly
In a resolution adopted in 1994 on the situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), the UN General Assembly:
Urges all parties to the conflicts in the former Yugoslavia, and in particular in the Federal Republic of Yugoslavia (Serbia and Montenegro) to cooperate with the “Special Process” on Missing Persons in the Territory of the former Yugoslavia … in determining the fate of thousands of missing persons by disclosing information and documentation on inmates in prisons, camps and other places of detention in order to finally locate such persons and alleviate the suffering of their relatives.
UN General Assembly
In a resolution adopted in 1995 on the situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), the UN General Assembly:
Dismayed by the huge number of missing persons still unaccounted for, particularly in Bosnia and Herzegovina and in Croatia,
…
22. Urges all parties, and in particular the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro), to cooperate with the “special process” dealing with the problem of missing persons in the territory of the former Yugoslavia … by disclosing information and documentation on inmates in prisons, camps and other places of detention;
…
28. Notes with concern that many of the past recommendations of the Special Rapporteur have not been fully implemented, in some cases because of resistance by the parties on the ground, and urges the parties, all States and relevant organizations to give immediate consideration to them, in particular the calls of the former and the current Special Rapporteurs:
(a) For the de facto Bosnian Serb authorities to provide prompt access for monitors to territories controlled by them, in particular to the Banja Luka region and to Srebrenica, emphasizing that the fate of thousands of missing persons from Srebrenica requires immediate clarification.
UN General Assembly
In a resolution adopted in 1999 on the situation of human rights in Kosovo, the UN General Assembly encouraged the ICRC “to pursue its clarification efforts in regard [to the high number of missing persons from Kosovo], in cooperation with other organizations such as the OSCE”.
UN General Assembly
In a resolution adopted in 2003 on the question of Western Sahara, the UN General Assembly:
Calls upon the parties to cooperate with the International Committee of the Red Cross in its efforts to solve the problem of the fate of the people unaccounted for, and calls upon the parties to abide by their obligations under international humanitarian law to release without further delay all those held since the start of the conflict.
UN General Assembly
In a resolution adopted in 2004 on the question of Western Sahara, the UN General Assembly:
Calls upon the parties to cooperate with the International Committee of the Red Cross in its efforts to solve the problem of the fate of the people unaccounted for, and calls upon the parties to abide by their obligations under international humanitarian law to release without further delay all those held since the start of the conflict.
UN General Assembly
In a resolution adopted in 2004 on missing persons, the UN General Assembly:
7. Invites States which are parties to an armed conflict to cooperate fully with the International Committee of the Red Cross in establishing the fate of missing persons and to adopt a comprehensive approach to this issue, including all practical and coordination mechanisms that may be necessary, based on humanitarian considerations only;
8.
Urges States and encourages intergovernmental and non-governmental organizations to take all necessary measures at the national, regional and international levels to address the problem of persons reported missing in connection with armed conflicts and to provide appropriate assistance as requested by the States concerned.
UN General Assembly
In a resolution adopted in 2005 on the question of Western Sahara, the UN General Assembly:
Calls upon the parties to cooperate with the International Committee of the Red Cross in its efforts to solve the problem of the fate of the people unaccounted for, and calls upon the parties to abide by their obligations under international humanitarian law to release without further delay all those held since the start of the conflict.
UN General Assembly
In a resolution adopted in 2006 on the question of Western Sahara, the UN General Assembly:
Calls upon the parties to cooperate with the International Committee of the Red Cross in its efforts to solve the problem of the fate of the people unaccounted for, and calls upon the parties to abide by their obligations under international humanitarian law to release without further delay all those held since the start of the conflict.
UN General Assembly
In a resolution adopted in 2006 on missing persons, the UN General Assembly:
6. Recognizes, 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;
…
8. Invites States that are parties to an armed conflict to cooperate fully with the International Committee of the Red Cross in establishing the fate of missing persons and to adopt a comprehensive approach to this issue, including all practical and coordination mechanisms as may be necessary, based on humanitarian considerations only;
9.
Urges States and encourages intergovernmental and non-governmental organizations to take all necessary measures at the national, regional and international levels to address the problem of persons reported missing in connection with armed conflicts and to provide appropriate assistance as requested by the concerned States, and welcomes, in this regard, the establishment and efforts of commissions and working groups on missing persons.
UN Commission on Human Rights
In a resolution adopted in 1994 on the situation of human rights in the territory of the former Yugoslavia, the UN Commission on Human Rights urged all the parties “to cooperate in determining the fate of 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 urged all the parties “to cooperate by disclosing all relevant available information and documentation in order to determine the fate of the thousands of missing persons”.
UN Commission on Human Rights
In a resolution adopted in 1995, the UN Commission on Human Rights asked for the cooperation of the parties to the conflict in Afghanistan in the tracing of the many persons reported missing as a result of the war.
UN Commission on Human Rights
In a resolution adopted in 1996 on the situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), the UN Commission on Human Rights welcomed “the report of the expert member of the Working Group on Enforced and Involuntary Disappearances on the special process on missing persons in the territory of the former Yugoslavia”.
UN Commission on Human Rights
In a resolution on missing persons adopted in 2002, the UN Commission on Human Rights:
6. Invites States which are parties to an armed conflict to cooperate fully with the International Committee of the Red Cross in establishing the fate of missing persons and to adopt a comprehensive approach to this issue, including all practical and coordination mechanisms as may be necessary, based on humanitarian considerations only;
7.
Urges States and encourages intergovernmental and non-governmental organizations to take all necessary measures at the national, regional and international levels to address the problem of persons reported missing in connection with armed conflicts and to provide appropriate assistance as requested by the concerned States.
UN Commission on Human Rights
In a resolution adopted in 2003 on the question of Western Sahara, the UN Commission on Human Rights called upon “the parties to cooperate with the International Committee of the Red Cross in its efforts to solve the problem of the fate of people unaccounted for”.
UN Commission on Human Rights
In a resolution adopted in 2004 on the question of Western Sahara, the UN Commission on Human Rights called upon “the parties to cooperate with the International Committee of the Red Cross in its efforts to solve the problem of the fate of people unaccounted for”.
UN Commission on Human Rights
In a resolution adopted in 2004 on missing persons, the UN Commission on Human Rights:
7. Invites States which are parties to an armed conflict to cooperate fully with the International Committee of the Red Cross in establishing the fate of missing persons and to adopt a comprehensive approach to this issue, including all practical and coordination mechanisms as may be necessary, based on humanitarian considerations only;
8.
Urges States and encourages intergovernmental and nongovernmental organizations to take all necessary measures at the national, regional and international levels to address the problem of persons reported missing in connection with armed conflicts and to provide appropriate assistance as requested by the concerned States.
UN Sub-Commission on Human Rights
In a resolution adopted in 1985 on Guatemala, the UN Sub-Commission on Human Rights requested that the government allow international humanitarian organizations, in particular the ICRC, to investigate the fate of the disappeared.
High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovina
In March 1996, the High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovina reported that, following consultation with the parties, a Working Group on Missing Persons chaired by the ICRC had been established. He also reported that a Working Group on Missing Persons and Exhumation had been created in conjunction with several UN agencies.
In July 1996, the High Representative reported that considerable efforts had been made by relevant national authorities and international mechanisms, notably by the Expert Group on Missing Persons and Exhumation, the UN Special Rapporteurs on the former Yugoslavia and on missing persons and the Working Group on Persons Unaccounted For, towards establishing the fate of missing persons and the location of mass grave sites.
Council of Europe Parliamentary Assembly
In 1981, in its consideration of a report on refugees from El Salvador presented by the Committee on Migration, Refugees and Demography, the Council of Europe Parliamentary Assembly noted that one of the main activities of the ICRC in El Salvador was tracing missing persons, with its Central Tracing Agency bureau acting as an intermediary between persons arrested or missing and their families.
Council of Europe Parliamentary Assembly
In a resolution on the situation in Cyprus adopted in 1984, the Council of Europe Parliamentary Assembly welcomed the continued consideration of the issue of missing persons on both sides in the context of the Committee on Missing Persons in Cyprus and urged the parties to continue their deliberations.
Council of Europe Parliamentary Assembly
In a recommendation adopted in 1996 on refugees, displaced persons and reconstruction in certain countries of the former Yugoslavia, the Council of Europe Parliamentary Assembly invited member States to give support to the ICRC in the implementation of the tasks conferred upon it under the 1995 Dayton Accords, namely to clarify the fate of missing persons.
Council of Europe Parliamentary Assembly
In an opinion adopted in 1996 on Croatia’s request for membership of the Council of Europe, the Council of Europe Parliamentary Assembly expressed its expectation that Croatia would cooperate with international humanitarian organizations and take all necessary steps to solve several ongoing humanitarian problems, notably in connection with missing persons.
European Parliament
In a resolution adopted in 1983 on the problem of missing persons in Cyprus, the European Parliament urged the ICRC to provide all assistance necessary for the speedy and effective completion of the investigations.
European Parliament
In a resolution adopted in 1988 on the situation in Cyprus, the European Parliament suggested that the Foreign Ministers meeting in Council should endeavour to obtain an agreement from all of the parties involved to call on the ICRC to carry out independent searches whenever it was felt that relevant facts could be uncovered.
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 called on parties to armed 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 (1986)
The 25th International Conference of the Red Cross in 1986 adopted a resolution on cooperation between National Red Cross and Red Crescent Societies and governments in reuniting dispersed families. The resolution reaffirmed the constant willingness of National Societies to “co-operate in humanitarian action, in reuniting members of dispersed families, in exchanging information regarding families and in facilitating the search for missing persons” and called upon governments to support the efforts of National Societies “dealing with the problems of conducting searches and reuniting families”.
Peace Implementation Conference for Bosnia and Herzegovina
The Conclusions of the London Peace Implementation Conference for Bosnia and Herzegovina in 1995 state that fulfilment of the 1995 Dayton Accords will require “full cooperation of the parties over … the provision of information about the fate of persons unaccounted for”.
No data.
ICRC
In 1980, in the context of the conflict in Lebanon, the ICRC undertook to search for missing persons.
ICRC
Following the Gulf War in 1991, a Tripartite Commission was established under ICRC auspices to trace people reported missing. The Commission is made up of representatives of Iraq, on the one hand, and of France, Kuwait, Saudi Arabia, the United Kingdom and the United States, on the other.
ICRC
In a joint declaration with UNICEF and UNHCR in 1994, the ICRC and the International Federation of Red Cross and Red Crescent Societies reaffirmed the need to do everything possible to ensure the survival and protection of unaccompanied children, trace their families and facilitate family reunification.
ICRC
In 1996, in a briefing on progress made in investigating violations of international law in certain areas of Bosnia and Herzegovina, the Office of the UN High Commissioner for Human Rights noted that a Working Group chaired by the ICRC had been set up to implement a process for the tracing of missing persons, in which the three parties to the conflict also participated. As agreed in the 1995 Dayton Accords, the ICRC was to be fully involved in the question of missing persons and to collect information from families. The ICRC relied on its own extensive network of offices and local branches throughout the former Yugoslavia. In June 1996, it also implemented a new step in its tracing procedure by launching a public campaign calling for people to come forward with any information they might have. The Expert Group on Missing Persons and Exhumations was said to seek to coordinate procedures on exhumations among the concerned international authorities. The briefing also stated that international agencies and authorities indicated that they generally had no problems with immediate and unimpeded access to areas throughout the country in pursuit of their mandated activities.
Hezb-i-Islami
In 1988, the Hezb-i-Islami faction in Afghanistan advised its fighters to give all possible assistance to the ICRC in its efforts to trace 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.
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”.
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.
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.
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”.
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.”
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”.
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.
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
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.
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.
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).
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
Cameroon’s Instructor’s Manual (2006) states: “The families of the [missing] have the right to know the fate of their relatives.”
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”.
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.”
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
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]”.
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.”
Mexico
Mexico’s Army and Air Force Manual (2009) states: “Families have the right to know what has become of their relatives.”
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.”
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
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.”
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.
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
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.”
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.
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 States of America
The US Field Manual (1956) reproduces Article 26 of the 1949 Geneva Convention IV.
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 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.”
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.
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.
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”.
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’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].
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.
Georgia
Georgia’s Law on the Georgia Red Cross Society (2017) states:
Article 4
The [Georgia Red Cross] Society performs its activities in accordance with the Constitution of Georgia, the Geneva Conventions of 12 August 1949 and their [1977 and 2005] Additional Protocols, the present law, other legislative and secondary normative acts and the statute of the Society.
…
Article 7
The Georgia Red Cross Society –
…
k) carries out services that contribute to restor[ing] family links, including assisting family members separated due to armed conflict, natural disaster or illness to re-establish contact and provides information concerning conditions of each other[.]
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.
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.
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
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.
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.

[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.
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
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.
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.
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.”
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.
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.
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
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
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.
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.
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.
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.

[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”.
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.
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 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 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 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.”
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
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
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 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
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
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 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.
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.

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
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
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.
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.
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.
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.”
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.
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”.
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 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”.
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”.
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.
[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.
[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.
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.
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).
In its judgment in
Timurtas v. Turkey in 2000, the Court confirmed this view.
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.
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 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
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
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.
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.”
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.
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.