Practice Relating to Rule 117. Accounting for Missing Persons

Recalling … relevant international instruments in the fields of human rights, humanitarian law and international criminal law,

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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 …

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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.

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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:

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. 

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. 

9.99 As soon as possible each party to an armed conflict must search for those reported missing by the enemy.

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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. 

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. 

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. 

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:

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. 

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:

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. 

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. 

- 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. 

“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. 

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:

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]. 

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. 

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:

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]. 

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]. 

… 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. 

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:

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:

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. 

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:

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. 

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

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. 

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. 

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. 

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. 

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 forensic investigation comprises the following stages:

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. 

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:

“(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:

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‘‘(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. 

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.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… 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. …

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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.

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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. …

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… 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.

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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.

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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. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

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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.

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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. …

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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].

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I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed.  

In 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.

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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:

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]

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. 

[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. 

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. 

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]

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. 

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]

4. Indicate:

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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. 

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.

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65. These changes hold out the prospect of a historic breakthrough in the search for disappeared children. 

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]

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. 

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.  

[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. 

[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. 

[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. 

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. 

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. 

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:

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. 

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. 

…

… 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. 

[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:

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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 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)

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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 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. 

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. 

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.

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. 

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[:]

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. 

In addition to possible action as a protecting power and to gathering information on prisoners of war, the ICRC fulfils the following tasks:

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. 

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. 

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. 

- 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. 

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. 

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:

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:

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. 

[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.

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.

…

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 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. 

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]. 

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]. 

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. 

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. 

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. 

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:

“(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:

…

“(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—

“(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. 

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.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

…

In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

…

To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

…

According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

…

I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In 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:

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]

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. 

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. 

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. 

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. 

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.  

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. 

(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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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]. 

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]. 

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:

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. 

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.  

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. 

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. 

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[.] 

[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. 

[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. 

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. 

[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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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.  

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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.  

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. 

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. 

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. 

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. 

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. 

d. Concerning Belgian prisoners of war, wounded, sick and dead in the power of an enemy nation:

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. 

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:

If applicable, the following information shall also be communicated:

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. 

“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. 

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. 

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. 

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]. 

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]. 

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:

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. 

[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. 

[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. 

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]

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. 

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. 

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:

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]

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. 

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. 

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. 

[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. 

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. 

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. 

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. 

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. 

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]

…

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. 

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. 

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. 

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”. 

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. 

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. 

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. 

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]

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)

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. 

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. 

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. 

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. 

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. 

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.