Rule 117. Each party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate.
Volume II, Chapter 36, Section A.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. The obligation to account for missing persons is consistent with the prohibition of enforced disappearances (see Rule 98) and the requirement to respect family life (see Rule 105). This rule is also supported by the obligation to record all available information prior to disposal of the dead (see Rule 116). The rules cross-referred to here all apply in both international and non-international armed conflicts.
The Geneva Conventions provide for the setting up of Information Bureaux whose role it is to centralize information on prisoners of war and civilians belonging to an adverse party, to transmit such information to that party and to open inquiries in order to elucidate the fate of missing persons.
The Fourth Geneva Convention requires that parties to the conflict facilitate enquiries by persons looking for family members dispersed by the conflict.
Additional Protocol I requires each party to the conflict to search for persons who have been reported missing by the adverse party.
The obligation to account for missing persons is recognized in numerous agreements between parties to both international and non-international armed conflicts.
The rule requiring parties to the conflict to search for missing persons is set forth in a number of military manuals.
It is contained in some national legislation.
It is supported by official statements.
There are also reports of physical practice supporting this rule.
This practice includes that of States not, or not at the time, party to Additional Protocol I.
States and international organizations have on many occasions requested that persons missing as a result of the conflicts in Bosnia and Herzegovina, Cyprus, East Timor, Guatemala, Kosovo and the former Yugoslavia be accounted for.
The creation of the position of Expert for the Special Process on Missing Persons in the Territory of the Former Yugoslavia is further evidence of the international community’s expectation that the fate of missing persons be clarified.
In addition to country-specific resolutions, several resolutions adopted at the international level, which received very wide support and no negative vote, state the general duty to clarify the fate of missing persons. For example, in a resolution on assistance and cooperation in accounting for persons who are missing or dead in armed conflicts, adopted in 1974, the UN General Assembly called on parties to armed conflicts, regardless of their character, “to take such action as may be within their power … to provide information about those who are missing in action”.
In a resolution on missing persons in 2002, the UN Commission on Human Rights reaffirmed that each party to an armed conflict “shall search for the persons who have been reported missing by an adverse party”.
When this resolution was adopted, India, Indonesia, Japan, Malaysia, Pakistan, Sudan and Thailand were members of the Commission but had not ratified the Additional Protocols. The 26th International Conference of the Red Cross and Red Crescent in 1995 strongly urged all parties to an armed conflict “to provide families with information on the fate of their missing relatives”.
The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, requires that all parties to an armed conflict ensure that “every effort is made to clarify the fate of all persons unaccounted for and to inform the families accordingly”.
The SPLM/A Penal and Disciplinary Laws show that non-State actors also consider it necessary to keep records of military personnel in order to facilitate the search for missing persons.
Practice indicates that this rule is motivated by the right of families to know the fate of their missing relatives. This is implicit in Article 26 of the Fourth Geneva Convention, whereby States must facilitate enquiries made by members of families dispersed as a result of armed conflict.
Additional Protocol I states explicitly that in the implementation of the section on missing and dead persons, including the obligation to search for persons reported missing, the activities of States, parties to the conflict and international humanitarian organizations must be “prompted mainly by the right of families to know the fate of their relatives”.
An interpretation of this sentence in the light of the ordinary meaning of the words and the context suggests that the right of families to know the fate of their relatives pre-existed the adoption of Additional Protocol I and that the obligations the Protocol sets out with regard to missing persons (Article 33) and the treatment of the remains of the dead (Article 34) are based on this right.
The right of families to know the fate of their relatives is also set forth in other international instruments.
A number of military manuals, official statements and other practice emphasize the right of families to know the fate of their relatives.
This includes the practice of States not, or not at the time, party to Additional Protocol I.
An explanatory memorandum submitted by the German government to parliament in the process of the ratification procedure of the Additional Protocols remarks that Article 32 of Additional Protocol I does not confer a subjective right on the relatives of a missing person to gain information, but this is the only State to have made such a statement.
It is interesting to note that the SPLM/A publishes the names and other particulars of persons who fall into its hands during military operations and that it claims to do this for the benefit of the families of the captives.
The right of families to know the fate of their relatives is also supported by a number of resolutions adopted by international organizations and conferences. For example, in a resolution adopted in 1974, the UN General Assembly stated that “the desire to know the fate of loved ones lost in armed conflicts is a basic human need which should be satisfied to the greatest extent possible”.
In a resolution adopted in 2002, the UN Commission on Human Rights reaffirmed “the right of families to know the fate of their relatives reported missing in connection with armed conflict”.
The right of families to know the fate of their relatives is also supported by a resolution of the European Parliament and by recommendations of the Parliamentary Assembly of the Council of Europe.
The International Conference of the Red Cross and Red Crescent adopted resolutions in 1986, 1995 and 1999 stressing the right of families to be informed of the fate of their relatives.
The Final Declaration adopted by the International Conference for the Protection of War Victims in 1993 insisted that families of missing persons must not be denied information about the fate of their relatives.
These four resolutions were adopted with the support of States not party to Additional Protocol I and were couched in general terms, deliberately not limited to international armed conflicts.
Case-law of the UN Human Rights Committee and regional human rights bodies confirms that it is prohibited to withhold deliberately from families information on missing relatives. The Committee stated that disappearances gravely violated the rights of the disappeared person’s family, who suffered severe and often prolonged periods of mental anguish owing to uncertainty about the fate of their loved one.
The European Court of Human Rights found in several cases that withholding information from the families of persons detained by security forces, or silence in the case of persons missing during armed conflict, attained a degree of severity that amounted to inhuman treatment.
The Inter-American Court of Human Rights expressed the same view when it held that the State is obliged to use the means at its disposal to inform the relatives of the fate of disappeared persons.
It also stated that, in the event of the death of a victim, the State is obliged to give information to the relatives on where the remains of the deceased person are located.
The African Commission on Human and Peoples’ Rights has similarly held that “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 African Charter on the Rights and Welfare of the Child provides that if families are separated as a result of State action, the State must provide the children with essential information concerning the whereabouts of their family members.
The Charter also provides that if separation is caused by internal or external displacement arising from an armed conflict, States must take all necessary measures to trace the parents or relatives of children.
The obligation to account for missing persons is an obligation of means. Each party to the conflict must use its best efforts in this respect. This includes searching for, but also facilitating the search for, persons reported missing as a result of the conflict. As part of that obligation, each party to the conflict has a duty to keep records of deceased persons and of persons deprived of their liberty (see Rules 116 and 123). The obligation to provide that information which is available, however, is an obligation of result.
Practice suggests that exhumation may be an appropriate method of establishing the fate of missing persons.
Practice also indicates that possible ways of seeking to account for missing persons include the setting up of special commissions or other tracing mechanisms. Croatia’s Commission for Tracing Persons Missing in War Activities in the Republic of Croatia set up in 1991 and re-established in 1993 is one example.
Where such commissions are created, the parties have an obligation to cooperate in good faith with each other and with such commissions, for it is clear that cooperation is essential for their success. These commissions may include the ICRC or other organizations. The UN Secretary-General’s Bulletin on observance by United Nations forces of international humanitarian law provides that the UN force shall facilitate the work of the ICRC’s Central Tracing Agency.
Additional specifications for international armed conflict are to be found in the Fourth Geneva Convention and Additional Protocol I.
Practice indicates that the obligation to account for missing persons arises at the latest after an adverse party provides notification of those who are missing. The military manuals of Kenya, Netherlands and New Zealand provide that this duty arises “as soon as circumstances permit” or “as soon as possible”.
In an official statement in 1987, the United States supported the rule that the search for missing persons should be carried out “when circumstances permit, and at the latest from the end of hostilities”.
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War requires that tracing begin “at the first opportunity and at the latest as soon as active military operations are over”.
In a resolution adopted in 1974, the UN General Assembly called upon parties to armed conflicts, “regardless of their character or location, during and after the end of hostilities”, to provide information about those who are missing in action.
In a resolution on missing persons adopted in 2002, the UN Commission on Human Rights reaffirmed 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”.