Preventing persons from going missing, clarifying the fate and whereabouts of those who do and supporting their loved ones, including in their quest to know what happened and to seek justice for serious violations of international humanitarian law and international human rights law, are as important as ever.
Looking towards the International Day of Victims of Enforced Disappearance, ICRC legal advisers Ximena Londoño and Helen Obregón Gieseken provide key elements on how the law protects victims of enforced disappearance and other missing persons and on how the ICRC contributes to the broader global, regional, national and local efforts to prevent and address enforced disappearances as part of its work.
On the 30th of August, the world marks an important occasion to raise awareness about the tragic phenomenon of disappearances, placing those forcibly disappeared and their families at the centre of important calls for action. It is also a day to reaffirm and call for better respect for international human rights law (IHRL), in particular the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) – and international humanitarian law (IHL).
Addressing the plight of victims of enforced disappearance and other missing persons is a global and complex challenge. There are currently more than 210,000 persons registered as missing by the Red Cross and Red Crescent Family Links Network, and this is just the tip of the iceberg. Yet in many cases, efforts to prevent people from going missing – or to find those who have gone missing – suffer from a lack of resources, technical capacities or political will. No single person or organization can tackle this alone.
To determine relevant obligations and adopt appropriate responses, we first have to look at who we are talking about. The notion of ‘missing persons’, although not defined in international law, is found in different IHL rules (here and here), broadly referring to persons reported missing for reasons related to an armed conflict, which includes those forcibly disappeared. In IHRL, the only internationally agreed definition is that of ‘enforced disappearance’; in short, deprivation of liberty by State authorities or by persons or groups of persons acting with the involvement of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person.
In its operations, the ICRC understands missing persons as individuals about whom their families have no news and/or who, on the basis of reliable information, have been reported missing as a result of armed conflict, other situations of violence or any other situation that might require action by a neutral and independent body (pg. 536). This notion includes victims of enforced disappearances.
In its work, the ICRC calls for specific attention to the phenomenon of enforced disappearance. For instance, it has condemned such acts and urged States to prevent and conduct complete inquiries into such cases. The ICRC also contributed to the efforts of committed States and family associations to make the ICPPED a reality and supported the drafting of some of its provisions, notably on prevention, and seeks to ensure respect for these rules. But the description of missing persons we use in our daily work is broader, to ensure that all missing persons and the needs of their families are considered. For example, it covers those who die for reasons related to an armed conflict and remain unaccounted for due to the inability to collect bodies or to identify them prior to burial.
Zooming in on enforced disappearance in IHL and IHRL
The forcibly disappeared, other missing persons, and their families are protected under international law. Enforced disappearance is a violation of IHRL and IHL, both in international and non-international armed conflicts.
Under IHL, the prohibition of enforced disappearance was identified as a rule of customary law. IHL obligations related to the registration of persons deprived of their liberty further support the duty to prevent enforced disappearances, and other rules, including on ICRC’s access to detainees, can also contribute to preventing enforced disappearances. Extensive practice also indicates that the prohibition encompasses a duty to investigate alleged enforced disappearances.
Importantly, IHL contains obligations on the investigation and prosecution of war crimes. Enforced disappearance consists of a number of war crimes (CIHL Rule 156 explanation). IHL also requires that parties account for persons reported missing due to conflict and provide families with any information it has on their fate. As the summary to this rule notes, this obligation is consistent with the prohibition of enforced disappearances. Practice also indicates it is motivated by the right of families to know the fate of their missing relatives.
Under IHRL, the ICPPED marked a milestone as the only universal treaty recognizing enforced disappearance as a violation and families as victims and rights-holders, including to know the truth about the circumstances of the disappearance, the progress and results of the investigation and the fate of the disappeared. It also contains critical provisions on the prevention of disappearances and on accountability. It addresses three important axes: prevention, search and accountability.
The ICRC’s contribution to wider efforts on enforced disappearance
The ICRC works to prevent and address enforced disappearance as part of its engagement on missing persons. This is an integral part of its mandate and of its Central Tracing Agency (CTA), which is at the heart of efforts to protect and restore family links, search for missing persons and protect the dignity of the dead.
The ICRC’s regular detention visits contribute to the prevention of enforced disappearances. The registration and follow-up of persons deprived of their liberty, and efforts to restore and maintain contact between these and their families are key protective measures. The ICRC also engages in a bilateral and confidential protection dialogue with States and non-State armed groups on the protection of detainees and other persons who are separated and on preventing persons from going missing, including due to enforced disappearances. It does so to influence existing behaviors and patterns, often deriving from systemic trends. Reaffirming and calling for respect for IHL and IHRL obligations is at the center of this dialogue and of our policy work, alongside broader humanitarian concerns.
The ICRC takes a comprehensive approach to prevent persons from going missing, restore and maintain family links, clarify the fate and whereabouts of the missing, address the needs of their families and support authorities and other actors. It brings together protection, forensic, legal, mental health and psychosocial support services, putting those affected at the center. For instance, when States take measures to find the missing – whether it is within a criminal investigation or outside of it – the ICRC provides technical advice and recommends that such processes appropriately address the myriad rights and needs of families. It also seeks to ensure that they comply with relevant international law, standards and practices, all of which are necessary for an effective and holistic response. We encourage States to involve lawyers, judges, prosecutors, forensic practitioners, psychologists, social workers, parliamentarians, and politicians in conversations on, and the design of, measures to support the families.
The ICRC also provides legal and technical support to States to enact laws and regulatory frameworks to implement their international obligations, including to prevent, account for, and investigate and prosecute, as appropriate, enforced disappearance and other cases of missing persons, and seeks to ensure that any measures adopted comply with these. As part of this effort, it continues to promote the ICPPED and its effective domestic implementation. When translating international law into practice, differences in legal systems means that there is no one size fits all approach. This requires adapting responses to each States’ national legal order, and addressing the complexity and variety of circumstances in which people go missing. This will allow determining the resulting obligations and seek to ensure that these, including the rights of families to justice and reparation, are fully respected by the responsible authorities.
Lastly, it must be recalled that the responsibility to repress international crimes, including enforced disappearance, and to bring justice to victims belongs to States and, in some cases, to international judicial institutions. The ICRC is supportive of actions aimed at holding those responsible for international crimes accountable. It contributes to these efforts by recalling obligations to investigate and prosecute serious violations of IHL and supporting States’ efforts to implement these.
However, in line with its confidential approach, which is directly derived from the principle of neutrality and independence, the ICRC does not contribute, and seeks not to be seen as contributing, to accountability processes. Confidentiality is not an aim in and of itself; it is a tool that enables us to build trust, secure access and ensure the security of our staff and the people we are trying to help (allowing for exceptions only in certain very limited circumstances). The use of ICRC confidential information in accountability processes regardless of their integrity and legitimacy, could be seen as being involved in controversies of a political, religious or ideological nature, which could erode the perception and trust in the ICRC as a neutral and independent humanitarian actor. This in turn would negatively impact our activities and thus people in need of protection and assistance.
A collective effort
Many actors play a key role in preventing people from going missing, searching for those who do, bringing those responsible to justice and responding to the needs of families. This includes efforts to ensure that the specific obligations on enforced disappearance are respected.
Civil society actors, including family associations such as the Mothers and Grandmothers of La Plaza de Mayo, are key stakeholders and advocates in raising awareness on victims of enforced disappearance and other missing persons, clarifying their fate, and bringing those responsible to justice. Their efforts have contributed to the development of law and policy reform processes. For instance, many States have adopted measures at domestic level to define new processes or improve existing ones on missing persons (e.g. Bosnia and Herzegovina, Colombia, Mexico and Peru), some on enforced disappearance specifically, including due to the efforts of families and organizations. They were also instrumental in launching the process in 1981 that led to the ICPPED’s adoption. For all these reasons, and more (e.g. understanding of family needs; capacity to influence), it is essential to support these actors and involve them in shaping responses.
International and regional actors also play a pivotal role in addressing enforced disappearances, particularly from an accountability perspective. International and regional human rights courts and tribunals, including the European Court of Human Rights and the Inter-American Court of Human Rights, have greatly contributed to clarifying and further developing normative principles related to enforced disappearance. Under the Statute of the International Criminal Court, enforced disappearance constitutes a crime against humanity when committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack.
Human rights treaty bodies and Human Rights Council special procedures also play a key normative and advocacy role on enforced disappearance. Importantly, the Committee on Enforced Disappearances (CED) and the Working Group on Enforced or Involuntary Disappearances (WGEID), through complementary roles and functions, support States in their fight against enforced disappearances. The CED’s functions are legally grounded in the ICPPED; it is responsible for monitoring its implementation, including by examining States parties reports and receiving individual complaints. The WGEID assists families in determining the fate or whereabouts of reportedly disappeared family members.
Efforts continue – but need to be redoubled – to raise awareness of obligations relating to enforced disappearance and other missing persons and to foster sustained political commitment, both nationally and internationally, to ensure compliance with the law. Here the ICPPED is key; States not yet having done so should ratify it, and those that have should work closely with the CED to ensure its effective implementation, including by making enforced disappearance a crime at the domestic level.
UN GA resolutions (19742020) and Resolution 2474 on missing persons are also important tools to raise awareness and leverage support, including for the work of human rights mechanisms related to enforced disappearances and of other civil society actors, by placing the issue on the global agenda regularly. In particular, Resolution 2474 emphasizes that the issue of missing persons is a priority during conflict, not just post-conflict; this is key to early and preventive action. The resolution also encourages relevant UNSG special representatives to consider this issue when implementing their mandates, including in bilateral discussions with States. Finally, 2474 also calls upon members States to cooperate with different actors, including international organizations, on the question.
Towards an effective and comprehensive response
Between IHL and IHRL, the international legal framework is clear, robust and comprehensive, but achieving universalization of the ICPPED and the adequate implementation and enforcement of relevant obligations requires political will. This remains a challenge in many contexts. People still go missing and are forcibly disappeared, and families continue to suffer, while time fades away.
An effective and comprehensive response to the tragedy of those forcibly disappeared, other missing persons and their families is a complex endeavor that goes beyond the capacity and mandate of any one actor. The initiatives and the efforts of many actors with different roles, approaches and areas of expertise are key.
The ICRC is part of these efforts and it seeks to ensure that its engagement is complementary to that of other actors. For instance, its Missing Persons Project has created a global community of practitioners bringing together different stakeholders and families of the missing, including those forcibly disappeared, to encourage multi-disciplinary exchanges and the joint development of best practices and guidance documents. An important part of this work is continued dialogue with, and involvement of, actors such as the CED and the WGEID.
Ultimately, addressing enforced disappearances and other cases of missing persons, in accordance with their obligations under IHL and IHRL, is the responsibility of the authorities concerned. Working to build a conducive environment to prevent people from being forcibly disappeared or going missing in other circumstances, search for those missing, bring those responsible for crimes to justice and uphold the rights of families remains as essential as it was decades ago. We must continue seeking to foster sustained political commitment by the concerned authorities to achieve these aims and an environment that will not set aside the suffering of families even in war and even after decades. This requires the involvement of lawyers and advocates alike.
 ICPPED, Article 2, 20 December 2006; preamble of the Declaration on the Protection of all Persons from Enforced Disappearance; and Inter-American Convention on Forced Disappearance of Persons, Article II, 9 June 1994.
 See notably International Conference of the Red Cross and Red Crescent: Resolution II (1984), pg.149; Resolution XIII (1986), pg. 157; and Resolution 1 Plan of Action (1999), pg. 150. See also the conclusions of the events held prior to the International Conference of Governmental and Non-Governmental Experts on Missing Persons (19-21 February 2003) calling for all necessary measures to prevent and punish enforced disappearance, the training of law enforcement officials on this offence and the implementation of obligations, including the prohibition of enforced disappearance (pp. 29, 37 and 49).
 Art. 7(1)(i); Art. 7(2)(i) includes political organizations in the definition of enforced disappearance.
- Filipa Schmitz Guinote & Eva Svoboda, Where are they? Three things the families of missing persons teach us about war and peace, May 6, 2021
- Ellen Policinski, The Missing: What’s in this edition of the Review, July 2, 2019
- Kvitoslava Krotiuk, Memory and war: does time really heal?, December 17, 2019