Every day, people go missing amidst conflict and violence, or on the paths of exile, displacement or migration. Meanwhile, those whose loved ones went missing in the past continue to live with an open wound, unable to heal. Long after wars or disasters are over, the wounded have been cared for and new homes have been built upon the ruins of the old ones, the suffering of people whose loved ones are missing lingers on. Given the scale of the phenomenon of missing persons globally, the intergenerational impact that unsolved cases of missing persons have on families, communities and societies, as well as the increased internationalization of man-made and natural disasters, the Review has dedicated this edition to the issue of the missing, examining in particular the needs of missing persons and their families, mechanisms aimed at clarifying the fate of missing persons, and measures taken to identify the dead.
Table of contents
EDITORIAL: THE MISSING
Every day, people go missing amidst conflict and violence, or on the paths of exile, displacement or migration. Meanwhile, those whose loved ones went missing in the past continue to live with their pain, unable to heal. Long after the wars or disasters are over, the wounded have been cared for and the new have been homes built upon the ruins of the old ones, the suffering of people whose loved ones are missing lingers on, the last open wound.
Vincent Bernard, Editor-in-Chief
INTERVIEW WITH ESTELA BARNES DE CARLOTTO
This interview highlights the human cost of forced disappearance for the families left behind, who know neither the fate nor the whereabouts of their loved ones. Drawing on her vast experience of leading and advocating for these families, Estela gives us valuable insight into the role that relatives can play in developing mechanisms to trace missing people.
Estela Barnes de Carlotto, Grandmothers of the Plaza de Mayo
FAMILIES OF THE MISSING IN SRI LANKA: PSYCHOSOCIAL CONSIDERATIONS IN TRANSITIONAL JUSTICE MECHANISMS
In the last thirty years, tens of thousands of Sri Lankans have experienced enforced disappearances of family members. In 2016, many members of such families came before the Consultation Task Force on Reconciliation Mechanisms, which was mandated to gather views on how people thought the transitional justice mechanisms should be designed, how they should be established and how they should function. This process allowed the families to share their experiences and to outline what they saw as important in shaping the transitional justice mechanisms. This article surveys the complex nature of their distress and psychosocial needs, as expressed by them during the consultations. It proposes that transitional justice mechanisms should be designed to protect their psychosocial well-being, address their complex psychosocial needs, and provide them with support and protection before, during and after their engagement in the mechanisms.
Gameela Samarasinghe, University of Colombo Maleeka Salih, Consultation Task Force on Reconciliation Mechanisms
FAMILIES OF THE MISSING: PSYCHOSOCIAL EFFECTS AND THERAPEUTIC APPROACHES
Families of the missing often have no facts to clarify whether their loved one is alive or dead, or if dead, where the remains are located. Such loss is called "ambiguous loss", and those suffering from it will usually resist change and will continue to hope that the missing person will return. As this article will endeavour to explain, our goal as professionals working with the families of the missing is to help them shift to another way of thinking that allows them to live well despite ambiguous loss. To do this, we must acknowledge that the source of suffering – the ambiguity – lies outside the family. The article offers a psychosocial model with six guidelines focusing on meaning, mastery, identity, ambivalence, attachment, and finding new hope.
Pauline Boss, University of Minnesota
Q&A: THE ICRC’S ENGAGEMENT ON THE MISSING AND THEIR FAMILIES
The International Committee of the Red Cross (ICRC) has a long history of working with missing persons and their families. Based on its statutory mandate as enshrined in the 1949 Geneva Conventions, their 1977 Additional Protocols, the Statutes of the International Red Cross and Red Crescent Movement and resolutions of the International Conferences of the Red Cross and Red Crescent, the ICRC has worked to prevent people from going missing and has facilitated family contact and reunification. It has also worked to clarify the fate and whereabouts of missing persons since 1870, during the Franco-Prussian War, when it pioneered the compilation of lists of prisoners of war and the introduction of "the wearing of a badge so that the dead could be identified". This Q&A explores the ICRC's current work on the issue of the missing and will, in particular, explore the ways in which the ICRC's Missing Persons Project aims to position the missing and their families at the centre of the humanitarian agenda.
IMPLEMENTING INTERNATIONAL LAW: AN AVENUE FOR PREVENTING DISAPPEARANCES, RESOLVING CASES OF MISSING PERSONS AND ADDRESSING THE NEEDS OF THEIR FAMILIES
International humanitarian law and international human rights law seek to prevent people from going missing, and to clarify the fate and whereabouts of those who do go missing while upholding the right to know of their relatives. When implementing international law at the domestic level, national authorities should plan carefully before engaging in any policy or legal reform that will address the issue of missing persons and the response to the needs of their families. This article seeks to present a general overview of the provisions of international law that are relevant to understanding the role of national implementation vis-à-vis the clarification of the fate and whereabouts of missing persons and the response to the needs of their relatives. It also presents the role that the ICRC has played in this regard and highlights three challenges that may arise at the national level when working on legal and policy reforms.
Ximena Londoño, ICRC Alexandra Ortiz, ICRC
PROTECTION OF MIGRANTS FROM ENFORCED DISAPPEARANCE: A HUMAN RIGHTS PERSPECTIVE
This article looks at the issue of enforced disappearances of migrants during their migratory journey or once they have reached their destination, a subject yet to be addressed in the literature. It examines how the legal and analytical framework provided by international human rights law and migration law applies to enforced disappearances of migrants. It then reviews the factors that contribute to this phenomenon in different contexts, including the disappearance of migrants for political reasons, those that take place in detention and deportation processes and those that take place within the context of migrant smuggling and trafficking.
Bernard Duhaime, University of Quebec in Montreal (UQAM) Andréanne Thibault, University of Montreal
ESTABLISHING MECHANISMS TO CLARIFY THE FATE AND WHEREABOUTS OF MISSING PERSONS: A PROPOSED HUMANITARIAN APPROACH
This article examines the different types of mechanisms which can contribute to addressing the issue of the missing, including providing answers on the fate and whereabouts of missing persons. It looks in detail at one approach that the authors have observed in the field. It argues that an approach based on humanitarian objectives which does not look into who is responsible for the disappearance, with proper management of confidential information, could be a powerful instrument for searching for and collecting relevant information on the missing in certain contexts. The article also proposes avenues for further research, with a view to enhancing the global capacity to provide meaningful answers for the missing and their families.
Monique Crettol, Adviser Lina Milner, ICRC Anne-Marie La Rosa, International consultant on global governance Jill Stockwell, ICRC
THE SRI LANKAN OFFICE ON MISSING PERSONS: TRUTH AND JUSTICE IN TANDEM?
In October 2015, by co-sponsoring United Nations Human Rights Council Resolution 30/1 entitled "Promoting Reconciliation, Accountability and Human Rights in Sri Lanka", the Sri Lankan government formally committed to embarking on a transitional justice process following three decades of armed conflict. Several thousand people allegedly disappeared during this period, often in connection with the armed conflict or as a result of internal disturbances. It is in this context that the Office on Missing Persons (OMP) was operationalized in 2018. This article discusses the nature of tracing investigations into the fate and whereabouts of missing persons of the type to be carried out by the OMP. It argues that these investigations, while ostensibly pursuing a humanitarian approach, cannot be artificially and hermetically separated from criminal justice processes. Further, it seeks to demonstrate that an integrated approach whereby strong linkages with criminal processes are provided for and encouraged best serves the interests of truth and justice.
Isabelle Lassée, South Asian Centre for Legal Studies
THE OFFICE ON MISSING PERSONS IN SRI LANKA: THE IMPORTANCE OF A PRIMARILY HUMANITARIAN MANDATE This article attempts to situate the Office on Missing Persons (OMP) in Sri Lanka in relation to varying approaches to mechanisms for searching for the missing. In particular, the article examines the possible tensions between a humanitarian and an accountability-based mandate and supports the position of the International Committee of the Red Cross that these two approaches can in fact be complementary in nature. It goes on to contend that the OMP's mandate is primarily humanitarian rather than exclusively humanitarian, and analyzes how this distinction may impact possible criminal prosecutions. It emphasizes the importance of preserving the humanitarian character of the OMP with the objective of ensuring that the victims' rights are at the centre of transitional justice processes. Vishakha Wijenayake, McGill University
DETERMINING THE FATE OF MISSING PERSONS: THE IMPORTANCE OF ARCHIVES FOR “DEALING WITH THE PAST” MECHANISMS
This article discusses the role of archives of transitional justice and "dealing with the past" (DWP) mechanisms when determining the fate of missing persons. The concept of dealing with the past, the terms "enforced disappearance" and "missing person",and the specific role of archives in periods of transition are examined. Subsequently, specific questions and challenges related to access and use of archives by DWP mechanisms, including those mechanisms with a mandate to determine the fate of missing persons, are described. Many questions related to access to archives, information management and preservation of records are similarly applicable to DWP mechanisms in general and to specific mechanisms mandated to search for missing persons. The article provides some examples of States' obligations related to maintaining and providing access to archives that could assist in the search for missing persons under international law and policy. The article concludes by emphasizing the importance of the preservation and protection of archives relevant for dealing with the past. It further highlights the need to grant DWP mechanisms, especially those aimed at determining the fate of missing persons, access to those archives.
Elisabeth Baumgartner, Swisspeace Lisa Ott, Swisspeace
USING FORENSIC SCIENCE TO CARE FOR THE DEAD AND SEARCH FOR THE MISSING: IN CONVERSATION WITH DR MORRIS TIDBALL-BINZ
Dr Morris Tidball-Binz is a forensic doctor who joined the International Committee of the Red Cross (ICRC) in 2004 and has since worked for the organization in numerous contexts, helping to develop its novel forensic capacity. Having begun his career with forensic and human rights organizations, he helped pioneer in his native South America the application of forensic science to human rights investigations, particularly the search for the disappeared. He helped create the ICRC's Forensic Unit, of which he was the first Director until early 2017; he then headed the forensic operation for the Humanitarian Project Plan. He is currently the Forensic Manager for the ICRC's new Missing Persons Project. He spoke with the Review to share his insights on the development of humanitarian forensic action and its role in protecting the dead and clarifying the fate of missing persons.
Dr Morris Tidball-Binz, ICRC
ADVANCES AND PROGRESS IN THE OBLIGATION TO RETURN THE REMAINS OF MISSING AND FORCIBLY DISAPPEARED PERSONS
This article analyzes the evolution in international law of the obligation to search for and return the remains of forcibly disappeared and missing persons. Receiving the remains of forcibly disappeared and missing persons is one of the primary needs of their families, who bring the issue to international courts and nonjudicial mechanisms. This obligation has been incrementally recognized and developed by different human rights courts, which have included the obligation to search for and return the remains of disappeared persons in their remedies. In parallel to the development of the obligation by international courts, the international community has begun to become more involved in assisting in return of the remains of forcibly disappeared and missing persons to their families.
Grażyna Baranowska, Polish Academy of Sciences
THE FIRST ATTEMPTS IN MEXICO AND CENTRAL AMERICA TO ADDRESS THE PHENOMENON OF MISSING AND DISAPPEARED MIGRANTS
The phenomenon of missing migrants, including victims of enforced disappearance, presents exceptional challenges due to its specific features and transnational scope. This article analyzes the case of missing and disappeared migrants in Mexico and illustrates the obstacles faced by their families, mostly residing in Central America, in their efforts to establish the fate and whereabouts of their loved ones and to obtain justice and redress. The article describes the process which led to the establishment of three mechanisms – a Forensic Commission, an Investigative Unit on Crimes against Migrants and an External Mechanism of Support for Search and Investigation – that aim at providing innovative responses and tackling the transnational dimension of the issue. The first significant achievements are presented, along with the remaining pitfalls.
Gabriela Citroni, University of Milano-Bicocca
MANAGEMENT OF THE DEAD FROM ISLAMIC LAW AND INTERNATIONAL HUMANITARIAN LAW PERSPECTIVES: CONSIDERATIONS FOR HUMANITARIAN FORENSICS
This article discusses a number of contemporary issues and challenges pertinent to the management of the dead in contemporary armed conflicts and other situations of violence and natural disasters under Islamic law and international humanitarian law. Among the issues and challenges faced by forensic specialists in Muslim contexts at present are collective burial, quick burial of dead bodies, exhumation of human remains, autopsy, burial at sea, and handling of the bodies by the opposite sex. The article concludes that both legal systems have developed rules which aim at the protection of the dignity and respect of dead bodies, and that they complement each other to achieve this protection in specific Muslim contexts. The main objectives of this article are twofold: firstly, to give an overview of the Islamic law position on these specific questions and challenges, in order to, secondly, provide some advice or insight into how forensic specialists can deal with them.
Ahmed Al-Dawoody, ICRC
ADOPTION OF THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977: A MILESTONE IN THE DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW On 8 June 1977, the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts adopted two Protocols Additional to the 1949 Geneva Conventions. This was the result of nearly ten years of intensive and delicate negotiations. Additional Protocol I protects the victims of international armed conflicts, while Additional Protocol II protects the victims of non-international armed conflicts. These Protocols, which do not replace but supplement the 1949 Geneva Conventions, updated both the law protecting war victims and the law on the conduct of hostilities. This article commemorates the 40th anniversary of the adoption of the 1977 Additional Protocols.
François Bugnion, Independent consultant in international humanitarian law and humanitarian action
STRENGTHENING RESILIENCE: THE ICRC’S COMMUNITY-BASED APPROACH TO ENSURING THE PROTECTION OF EDUCATION
Education has received increased attention within the humanitarian sector. In conflict-affected contexts, access to education may be hampered by attacks against and the military use of educational facilities as well as attacks and threats of attacks against students, teachers and other education-related persons. Affected populations may also find themselves unable to access education, for example due to displacement. This article looks into the different sets of humanitarian responses aimed at (1) ensuring the protection of educational facilities and related persons, mostly through advocacy efforts centred on weapons bearers, and (2) (re-)establishing education services where they are not present or are no longer functioning, mostly through programmes directed at affected populations. It then argues that, in contrast with dominant practices, the protection of education can also be ensured through programmatic responses with meaningful participation of affected communities, and examines the example of the Safer Schools programme in Ukraine.
Geoff Loane, ICRC Ricardo Fal-Dutra Santos, ICRC
ANNOUNCEMENT: PROFESSORS EMILIANO BUIS AND EMANUELA-CHIARA GILLARD JOIN THE EDITORIAL BOARD OF THE INTERNATIONAL REVIEW OF THE RED CROSS
The editorial team of the Review is pleased to announce that Professor Emiliano Buis and Professor Emanuela-Chiara Gillard have joined the journal's Editorial Board.
WHAT’S NEW IN LAW AND CASE LAW AROUND THE WORLD? BIANNUAL UPDATE ON NATIONAL IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW JUNE-DECEMBER 2016
The biannual update on national legislation and case law is an important tool in promoting the exchange of information on national measures for the implementation of international humanitarian law (IHL).
NEW PUBLICATION: THE FIRST TWO VOLUMES OF THE UPDATED COMMENTARIES ON THE 1949 GENEVA CONVENTIONS
Explore the new Commentaries on the 1949 Geneva Conventions series.
INTERNATIONAL LAW AND NEW WARS, CHRISTINE CHINKIN AND MARY KALDOR
Book review by Daniele Archibugi.
PROSECUTING CONFLICT-RELATED SEXUAL VIOLENCE AT THE ICTY, SERGE BRAMMERTZ, MICHELLE JARVIS (EDS)
Book review by Silke Studzinsky.
NEW PUBLICATIONS IN INTERNATIONAL HUMANITARIAN LAW AND ON THE INTERNATIONAL COMMITTEE OF THE RED CROSS
The Library of the International Committee of the Red Cross (ICRC) welcomes researchers interested in international humanitarian law (IHL) and the organization's work throughout the years. Its online catalogue is the gateway to the most recent scholarship on the subject, documents of Diplomatic and International Conferences, all ICRC publications, rare documents published between the founding of the ICRC and the end of the First World War, and a unique collection of military manuals. The Library Team also publishes research guides in order to help researchers access the full text of the most relevant and reliable sources in the field of IHL and the ICRC.