ADVISORY COMMITTEE DISCUSSES MISSING PERSONS

The Human Rights Council Advisory Committee this afternoon discussed best practices regarding missing persons.

Wolfgang Stefan Heinz, member of the drafting group, said all were aware of the gripping issue of missing persons in armed conflict. It was therefore helpful that the Human Rights Council had asked the Advisory Committee to look deeper into this issue. An interim report was before the Committee, prepared by Mr. Huseynov in collaboration with the drafting group. It would be helpful if more Member Governments responded to the questionnaire that had been sent out.

Latif Huseynov, member of the drafting group, said the interim report focused mainly on legal matters pertaining to the status of missing persons. The final report would identify best practices once they had been analyzed. The current report identified missing persons as people who were unaccounted for or those who lost touch with their families. Even in post-conflict situations, States and parties to armed conflicts were still bound by international law. States were obliged to prevent people from going missing, through measures that would, ideally, be taken during peaceful times. That would include identifying people properly. An impartial body to identify missing persons would be necessary, and such a commission should have a mandate focused on tracing missing persons, working closely with governmental and non-governmental bodies.

Osman El Hajjé, a member of the Human Rights Council’s Working Group on enforced or involuntary disappearances, said the Working Group was created in 1980 by the Commission on Human Rights, and reported to the Human Rights Council today. Its mandate called on it to study issues of forced disappearances throughout the world, and within its mandate it worked from a humanitarian perspective. The Working Group had, for a long time, used its competencies and skills to receive and consider cases of forced disappearances that had taken place in situations of international armed conflict, and had always considered that these situations should be dealt with by the International Committee of the Red Cross on a priority basis. The experience of the Group was thus full of lessons to be drawn. All States had the duty to prevent forced disappearances, and punish the perpetrators thereof. Victims had the right to truth, justice, and total reparation for damages.

Among issues raised by speakers was that this was a very complex subject, and the Committee now had a much clearer view than in its initial discussions on the subject, seeing what were the challenges, and understanding that the principles had been set forth clearly. The most important thing was that the report clearly distinguished between missing persons and enforced disappearances. The issue of reparation required further consideration, as did whether the justice system should take this into account. An enormous amount of very valuable work had been done, but it was only a first step towards establishing a really thorough-going, sound study, which showed the new horizons on the issue which the international community was facing today. The text might not stand the test of time, as there had not been enough time to consider all aspects, and this could impact on the reputation of the Advisory Committee, as well as on its parent body; if the paper were to pass the test of time, it deserved the greatest possible level of consideration, as well as inclusion of all possible elements.

Speaking this afternoon were the following Committee Members: Emmanuel Decaux; Vladimir Kartashkin; Chinsung Chung; Dheerujlall Seetulsingh and Shiqiu Chen.

Also speaking were representatives of Azerbaijan, Pakistan, Mexico, and Algeria.

The next meeting of the Committee will be at 10 a.m. on Wednesday 27 January, when it will discuss its agenda and programme of work, including new initiatives.

Discussion on Missing Persons in Armed Conflict

WOLFGANG STEFAN HEINZ, Advisory Committee Expert, said all were aware of the gripping issue of missing persons in armed conflict. It was therefore helpful that the Human Rights Council had asked the Advisory Committee to look deeper into this issue. An interim report was before the Committee, prepared by Mr. Huseynov in collaboration with the drafting group. A revised version of the paper had been distributed, containing more specific information and a new sub-chapter, being the old paper with a number of changes and actualisations that made a better quality paper. The questionnaire, which had been distributed through the Office of the High Commissioner for Human Rights, had resulted in responses from 18 Member Governments from three world regions, and these would be reflected more fully in the final report. It would be helpful if more Governments responded, in particular Governments and countries that were actually facing problems with missing persons. The discussion here should help to further refine the paper, which would then go to the fourteenth session of the Human Rights Council in June, as requested by a Human Rights Council resolution from last autumn. The Council would then discuss the paper, and in the light of this discussion, there would be a second round of discussion in the Advisory Committee, following which a final paper would go before the Council.

LATIF HUSEYNOV, Advisory Committee Expert, said recent changes in the text of the interim report on missing persons during armed conflict had been made after comments by members of the drafting group, including an additional chapter on the restoration of family links and another on criminal investigation and prosecution. Otherwise, the interim report focused mainly on legal matters pertaining to the status of missing persons. The final report would identify best practices once they had been analyzed. The current report identified missing persons as people who were unaccounted for or those who lost touch with their families. The term did not include those who had gone missing during natural disasters. It started off by addressing the need to respect and to implement international law on missing persons during armed conflicts. The matter was linked to international law and international human rights laws. That embodied a number of rights, including the right to life, which could prevent people from going missing. If people caught up in armed conflict were treated in a certain way and if humanitarian organizations could gain access to them, they would be less likely to go missing. Even in post conflict situations, States and parties to armed conflicts were still bound by international law. International humanitarian law must be incorporated into the Maastricht accord. States were obliged to prevent people from going missing, through measures that would, ideally, be taken during peaceful times. That would include identifying people properly. National authorities must register deaths. National information bodies must pass on information on those who had fallen into enemy hands. There should be international laws on arrests, captivity and detention. Families had the right to communicate with their loved ones, partly through the Red Cross and Red Crescent networks. The official treatment of missing persons required various mechanisms including information sharing between parties to conflicts on ceasefires and peace accords.

An impartial body to identify missing persons would be necessary. Such a commission should have a mandate focused on tracing missing persons, working closely with governmental and non governmental bodies. In the event that parties to a conflict failed to communicate, the latter should seek the intervention of an international body. The judiciary, parliamentary commissions, and truth finding commissions could all help find solutions to the status of missing persons. The right to know was a pillar for families to know the fate of their loved ones, and the circumstances of their death. Parties to conflicts must strive to return the bodies of the deceased to their families. Remedies such as compensation had to be taken into consideration. If the right to know was violated, it should be punishable by law. The impact of missing persons during conflict on women and the elderly was notable. The legal status of missing persons and their families must be enshrined in domestic law. Turning to assistance, Mr. Huseynov said families deserved the same level of help as other citizens, whose loved ones had not gone missing. Inheritance and marriage rights should be a part of domestic legislation. Therapy and reparation should also be provided. National legislation must address the dead and human remains. Remains should be returned to the family or at least buried. Exhumation was part of the right to know and part and parcel of the right of the dead to dignity and to a cultural burial. What was most important was to identify them and for their families to be informed of their whereabouts. Information on missing persons must be processed correctly and lawfully. States should respect confidentiality and sanction those who had deliberately destroyed such information. They must partake in information sharing, identifying and exhuming the dead. Sharing information should not be conditional but unconditional since humanitarian law was not subject to reciprocity. Civil society bodies could provide psychological assistance to the families of those who had gone missing during armed conflict and thus required help in that regard.

OSMAN EL HAJJE, Member of the Working Group on Forced or Involuntary Disappearances, said the Working Group wished to thank the Advisory Committee for the invitation to present its observations on the issue of missing persons. The report contained a number of good practices, ideas, principles and fundamental data on this subject. The Working Group was created in 1980 by the Commission on Human Rights, and reported to the Human Rights Council today. Its mandate called on it to study issues of forced disappearances throughout the world, and within its mandate it worked from a humanitarian perspective. It had also been tasked with considering the progress achieved by States in the implementation of the United Nations Declaration on the protection of persons from forced disappearances. Its main task was to provide its assistance in locating missing persons, alive or dead, but it had another role, to help States improve the legal framework and their practices in this same field, under international law.

The issue of missing persons also covered that of forced disappearances, but there was a link between the two concepts, in the sense that missing persons could be so because they were the victims of forced disappearance. The Working Group had, for a long time, used its competencies and skills to receive and consider cases of forced disappearances that had taken place in situations of international armed conflict, and had always considered that these situations should be dealt with by the International Committee of the Red Cross (ICRC) on a priority basis. However, the Working Group had received and would continue to consider many cases of forced disappearances which had taken place during non-international situations of armed conflict, or situations of armed conflict or domestic violence, which was a different task, but completed that of the ICRC. The experience of the Group was thus full of lessons to be drawn, and could be used as the basis for the development of international norms in the field, which had today been codified in the International Convention on the Protection of All Persons Against Enforced Disappearances. All States had the duty to prevent forced disappearances, and punish the perpetrators thereof. Victims had the right to truth, justice, and total reparation for damages.

EMMANUEL DECAUX, Advisory Committee Expert, said there was a need to find best practices and mechanisms, and identify these in the United Nations system. This was a very complex subject, and the Committee now had a much clearer view than in its initial discussions on the subject, seeing what were the challenges, and understanding that the principles had been set forth clearly. The Committee could be useful as a sort of clearing house, working on international law, international humanitarian law, and international criminal law. There were different perspectives here, different kinds of humanitarian reasoning, and the focus on international conflicts as well as non-international armed conflicts and domestic violence. Another dimension could be added: natural catastrophes. From a human rights perspective, things were different. The 30 years of experience of the Working Group on enforced disappearances had led to the Convention on Enforced or Involuntary Disappearances, and although the number of States Parties to this Convention needed to increase, there was still room for the Working Group and other bodies to act here. In human rights law, the State was usually held responsible in classic cases of disappearances, even though it may not always control all its territory. The Convention contained another element - that the State was forced to have its own domestic legislation ensuring control over private actors in this regard, and should at least have the legal framework to prosecute. The issue of reparation required further consideration, as did whether the justice system should take this into account.

Vladimir Kartashkin, Advisory Committee Expert, said this was the Committee's first attempt at something in this field. Mr. Hajjé's statement shone a clear light on the issue - the Committee needed to be very clear that the study was not supposed to go in detail into the whole issue of involuntary or enforced disappearances, as it was talking not about this, but about missing persons. The Committee was supposed to focus on this issue. The first issue of principle related to the need to understand the difference between the two groups of persons, but this did not mean that the study should not even touch briefly on the situation of those who were subject to enforced or involuntary disappearances. The authors of the study had to be very clear on this regard, and briefly refer to the fact that these disappearances existed and were recognised as an international crime, and had various international legal remedies. Missing persons were not necessarily the victim of violent enforced disappearance, but may have just gone missing as a result of action that took place. Another issue that the Committee was supposed to focus on was best practices, and there was a lack of this topic in the study. An enormous amount of very valuable work had been done, but it was only a first step towards establishing a really thorough-going, sound study, which showed the new horizons on the issue which the international community was facing today.

CHINSUNG CHUNG, Advisory Committee Expert, pointed out that many women and girls had also gone missing due to rape, forced marriages, ethnic cleansing and ultimately due to mass killings that had tried to conceal sexual, gender based crimes that had been committed during armed conflicts. As well as discussing the matter, she said the interim report must address a gender perspective on the disappearance of such people and thus deploy specific measures in that regard.

HABIB MIKAYILLI (Azerbaijan) said the most important thing was that the report clearly distinguished between missing persons and enforced disappearances. The report also highlighted the humanitarian and human rights dimensions of this problem. It was understandable when dealing with the issue that political issues should be set aside. The report also touched on the role of national mechanisms in identifying the missing, and the national mechanism in Azerbaijan, with the cooperation of the International Committee of the Red Cross, had succeeded in this regard. Cooperation between parties to an armed conflict and relevant stakeholders was crucial in resolving this painful issue. While political will sometimes prevailed over such solutions, it should not be the case. There was still room for improvement in the text, and the Advisory Committee should fully benefit from the questionnaire sent to Member States. Azerbaijan looked forward to discussing this further in detail in the Human Rights Council.

MUHAMMAD SAEED SARWAR (Pakistan) noted that the task at hand was not simple and that it required more time and further analysis. Thus, the study was a work in progress, which would serve as a useful guide on the subject. Surely it would help the Advisory Committee gain a broader perspective on the status of missing persons in armed conflicts. Firstly, terminology was always crucial, potentially helping avoid controversies. The draft identified missing persons as any people who had been caught up in national and international conflicts. He noted that terrorism, a criminal act, could not be seen as a conflict and hoped that the drafting group would take that into consideration. He hoped that the valued contribution of the Committee would help United Nations members enhance their understanding on the topic.

JOSE RAMON LOPEZ LEON (Mexico) said with regards to enforced disappearances in the context of armed conflicts, as was pointed out by speakers, the study did refer to the distinction to be drawn between missing persons as the result of an armed conflict, and those who were subject to enforced or involuntary disappearance, and there were legal distinctions to be drawn between the two. There was a lot of common ground between human rights standards and international humanitarian law standards in this regard. Human rights standards did not only apply in peace time, they also had to be applied at times of armed conflict. Prevention of involuntary disappearances and prosecution of the perpetration of these disappearances had to be included in the general framework. Rights, which were denied when someone was subjected to an enforced or involuntary disappearance, were inalienable rights, and could never be suspended, no matter what kind of conflict was taking place. Therefore, standards should apply in peace time and in times of armed conflict. There could not be double standards.

SELMA MALIKA HENDEL (Algeria) said that Algeria understood that problems remained with the interim report. Members of the Advisory Committee needed more time to prepare the report, which was indeed, still a work in progress. Good, tried and tested practices and measures that could be applied across the board were crucial. A distinction had to be made on the scope of the study, between those who went missing during armed conflicts and other situations. It was vital to ensure that the Committee’s work in that regard was not already being done elsewhere. It was important to pinpoint what sort of conflicts the Committee was talking about. The Committee should look at definitions of national and international armed conflicts in line with the Geneva Conventions. Belligerence was also worth defining. Terrorism was a contentious issue which also required further clarification. Given that each situation was unique, members had to bear that in mind and not apply one solution for everybody afflicted by this matter. Reconciliation was a crucial aspect of work on the fate of missing persons during armed conflicts. It would be crucial to providing an exit strategy. Finally, she said that Algeria eagerly awaited forthcoming discussions on the matter at the Human Rights Council.

DHEERUJLALL SEETULSINGH, Advisory Committee Expert, said with regards to the text of the report, the judiciary mentioned in the text should be some sort of "Juge d'Instruction" or investigative branch of the judiciary, and thus another formula should be found in order to clarify the issue at all points. With regards to paragraph 60 of the paper on the legal status of missing persons, the reference was made to the draft recommendation of the Council of Europe, and this draft recommendation had been adopted by the Committee of Ministers on 9 December 2009, and thus the text should be updated, in particular as this was with regards to the presumption of death, and principles that should be adopted by States. These should also be taken into account in the best practices which the Committee would be recommending.

SHIQIU CHEN, Advisory Committee Expert, said this was a complex issue, whether the missing persons were arising from international conflicts or other conflicts. If this was indeed the definition, then the title should be changed to missing persons in armed conflicts, which was closer to the definition used in the text, and this would be clearer and more precise. The question was also whether to include people who disappeared in the war against terror - if they went missing in action, did they also deserve the consideration of the report, he wondered, noting that this was a politically-sensitive issue. Politically-speaking, he would agree to the view of Pakistan in this regard, but was afraid that it would give rise to other problems of definition, namely who were the terrorists, and who would determine them as such. It was thus no longer a simple issue, although perhaps it was a digression. The Council had mandated the Advisory Committee to do certain things, but, given the constraints of time, if this issue were to be studied, it would probably take too long, as it would include the legal aspect and practical issues. The text might not stand the test of time, as there had not been enough time to consider all aspects, and this could impact on the reputation of the Advisory Committee, as well as on its parent body. If the paper were to pass the test of time, it deserved the greatest possible level of consideration, as well as inclusion of all possible elements.

LATIF HUSEYNOV, Advisory Committee Expert, in concluding remarks agreed that even within the narrow scope of armed conflicts, the issue of missing persons was complex. Aside from dilemmas surrounding theoretical, legal and terminological matters and armed terrorist operations, it implicated laws, the State and individual responsibility. It also implied the involvement of forensic scientists and psychological support for relatives of missing persons. Therefore, its main focus should be humanitarian assistance and not criminal or State responsibility. After comments from members and observers, who had agreed on differentiating between missing persons in conflict and enforced disappearances, some aspects had become clearer. Since they had agreed on the scope of missing persons, there was no need to discuss it further. Members of the Committee could not water it down but fine tune the purpose and scope of this interim study, which made it pointless to go into more detail on such a distinction. Turning to Mr. Chen’s comment on long lasting armed conflicts, he said that raised no issues, since the search for missing persons was indefinite, regardless of when the conflict had ended. Thus, humanitarian law remained valid throughout.

He clarified that the current study referred to missing persons as a result of national and international conflicts. With regard to violence, there was no mention of missing persons except in armed conflicts. The report mentioned that human rights law was always applicable, under all circumstances, as stressed by the International Court of Justice. At this stage, the report’s main focus was the legal obligation of States in that regard. He hoped that replies would be submitted to the drafting group in order for them to be analyzed and turned into good practices. Turning to relying on forensic scientists to identify human remains, he said it was a new and pivotal issue for clarifying the fate of missing persons, citing the first ever data bank in Argentina that had been set up in 1987. Since this was a draft report, best practices would be incorporated as part of the Committee’s tasks. Referring to the issue of vulnerable people including relatives that required State support, he said the status of women and children should be elaborated. Criminal and State responsibility posed some dilemmas, which would raise problems in resolving the issue of missing persons. He wondered if it was feasible to speak in terms of the responsibility of perpetrators or to focus on the dead from a humanitarian point of view. He assured members that all efforts would be made to improve the text within the scope of the Advisory Committee’s mandate.

WOLFGANG STEFAN HEINZ, Advisory Committee Expert, also in concluding remarks, said that he believed that when it came to best practices, the large part of the text contained many recommendations to Governments, and what they should and should not do. Some more analysis was required of specific country situations, and Member States should provide more information in that regard. With regards to one of the queries on the issue of national mechanisms, when making recommendations, the institutions already present should be examined, as many of these already had as a normal task the issue of missing persons. When looking at the country responses, it could be clearly seen that countries that did not have armed conflict would usually point to the Police as the body dealing with missing persons. Other countries that had had conflict usually referred to a Justice or National Commission, and this was because it was so difficult to find common ground between States that had just emerged from conflict with each other. Governments needed to appoint a high-level Commission at a high political level which had the power to talk to the former enemy and deal with the issue. The text thus spoke a lot of the legal framework, but also about the difficulty of creating and supporting the political will in this regard.

For use of the information media; not an official record

AC10/005E