en
Close

Looking for answers: accounting for the separated, missing and dead in international armed conflicts

Analysis / Humanitarian Action / Law and Conflict 13 mins read

Looking for answers: accounting for the separated, missing and dead in international armed conflicts

Armed conflicts affecting all regions of the world today continue to result in the separation of families and in people going missing and dying. Such heart wrenching loss also occurs in other situations of violence, in disasters and along migratory routes. In 2021, the ICRC registered more than 29,000 new cases of missing people, bringing the current number of cases we are following in 2022 to 173,800 – a 75% increase over the past five years. Many decades-old cases remain unresolved the world over.

In this post, ICRC legal advisers Helen Obregón and Ximena Londoño shed light on some of the particularly rich – but not sufficiently known – rules of international humanitarian law, notably on the ICRC’s Central Tracing Agency and National Information Bureau, relevant to protecting people affected by international armed conflicts like the one taking place in Ukraine today. Taking action to implement these obligations on the ground today is essential to the prevention of greater suffering tomorrow.

Every year, people are separated from their families, go missing or die as a result of armed conflicts affecting all regions of the world. This includes people fighting in wars for their countries, who can be captured or killed, or those living under occupation and deprived of their liberty. International humanitarian law (IHL), applicable in international and non-international armed conflicts, contains a comprehensive set of rules that seek to account for people in the hands of the enemy, to prevent family separation and people from going missing, and to ensure that the dead are treated with dignity and properly identified in war.

However, many of these rules must be given effect in legislation and practice well before a war starts if they are to fulfil their promise. If States are not well prepared and do not take the relevant measures in peacetime, they will be scrambling to do so when a war breaks out and it may already be too late for some. Information related to those who become separated, go missing or die may be only partially gathered, get lost or never be collected in the first place. As time passes, information and memory fade. Any process to reconnect families, search for missing persons and identify human remains thus becomes more difficult and painful. Families will remain in limbo, not knowing the fate and whereabouts of their relatives for years and even decades while struggling with the numerous consequences this has on their lives.

Understanding the system and knowing the rules is a crucial first step for effective implementation.

A constellation of rules to account for people in enemy hands and inform their families in international armed conflicts

When it comes to armed conflicts between States, IHL contains a detailed and dense set of obligations for States on the separated, missing and dead.[1] The obligations of the ICRC’s Central Tracing Agency (CTA) and of States’ National Information Bureaux (NIBs) are key among these. Together with other rules, they provide a constellation of interlinked information pathways that ultimately aim to account for people in enemy hands, prevent people from going missing, and fulfil the right of families to know the fate and whereabouts of their relatives.

The ICRC’s Central Tracing Agency: a powerhouse helping those looking for answers

For more than 150 years, the CTA has been, together with the Family Links Network of National Red Cross and Red Crescent Societies, at the heart of efforts to keep families together, reunite them and help them stay in touch, prevent people from going missing, search for the missing, protect the dignity of the dead and ensure that the rights and needs of families are addressed.

This work has been a feature of the ICRC’s action in armed conflicts since 1870, when it opened an Agency during the Franco-Prussian war. The CTA’s mandate and role are deeply rooted in IHL, first set down in the 1929 Geneva Convention on Prisoners of War and reaffirmed in the 1949 Geneva Conventions and their First Additional Protocol of 1977.[2] According to the Statutes of the Red Cross and Red Crescent Movement, it is the role of the ICRC ‘to ensure the operation of the Central Tracing Agency as provided in the Geneva Conventions’. The ICRC’s CTA mandate and role are also based on numerous resolutions of the International Conference of the Red Cross and Red Crescent Movement, which extend its activities to victims of all armed conflicts, other situations of violence, disasters and other emergencies, including in the context of migration (see here, and here).

Technically speaking, Articles 123 of GCIII and 140 of GCIV provide that the ICRC ‘shall, if it deems necessary, propose to the Powers concerned the organization of such an Agency’. In practice, ‘the ICRC has played the role assigned by the Geneva Conventions to the Agency since the very beginning’ (here). Since its creation, the CTA’s activities have also been decentralized, with a presence in the field to be closer to affected populations and increase the effectiveness of the services it provides.

The Geneva Conventions do not specify how the CTA should be organized. In practice, it has always combined its work on prisoners of war, civilian internees and other protected persons in a single, permanent structure. The CTA, as an integral part of the ICRC, is part of a permanent international organization of non-governmental nature enjoying international legal personality as well as privileges and immunities in the international and domestic legal orders. As such, the neutrality of the CTA flows from the manner in which it carries out its work; guided by the Fundamental Principles of the Red Cross and Red Crescent Movement.

What does it do, and how?

The CTA helps prevent people from going missing by ensuring a trace of their whereabouts is kept and shared, and helps search for and clarify the fate and whereabouts of those who are already missing. One of its most important tasks in international armed conflicts is thus to collect and centralize information on the fate and whereabouts of prisoners of war, civilians deprived of their liberty and other protected persons, including fallen soldiers in the hands of the enemy. It transmits this information to the parties to the conflict and to the families – this is part of its role as a neutral intermediary.

To do this, the CTA may collect and receive information ‘through official or private channels’ (here and here). It can rely on a variety of sources, such as:

  • The National Information Bureau (or equivalent) of each party to an international armed conflict (here and here);
  • The point of capture or internment of an individual protected by the Geneva Conventions (here and here);
  • The ICRC in the field when registering detainees and carrying out detention visits and;
  • National Societies of the Red Cross and Red Crescent Movement as part of the broader Family Links Network.

All these sources of information contribute to determining the identity of an individual and their fate and whereabouts.  Once the information has reached the CTA, the information is centralized for transmission to the parties to the conflict and to the families as rapidly as possible. Exceptions to the transmission of information from the CTA to the adverse party exist when it can be detrimental to the person concerned or to their families[3]. Safeguarding this information helps to ensure that those the CTA seeks to protect are accounted for in the most efficient, effective and safe manner and that their families are informed.

The National Information Bureau: a pathway for answers

As seen above, there are different information pathways to reach the CTA, one of which is the NIB. A State may choose to set up its NIB in different ways. The Geneva Conventions do not prescribe what entity or service should establish and run it, or how it should be organized. What matters is that it can receive and transmit information, enabling the identification of persons and rapid notification of families – and that it can do so effectively. Clear procedures for the creation and functioning of the NIB should be established in peacetime so that it can begin operating as soon as possible after an armed conflict starts.

States have an obligation to establish an NIB from the outbreak of international armed conflicts and/or occupation, as set down in GCIII and GCIV. As States are ultimately responsible for the proper functioning of NIBs, they should always maintain a link with their national authorities which must be able to maintain some control over its functions.

The key role of the NIB is to account for enemies in their hands, alive or dead, prevent them from going missing, and inform families of their fate and whereabouts through the CTA.

Those covered by its functions include prisoners of war (GCIII Art. 4); wounded, sick, shipwrecked or dead military personnel in the hands of the adverse party (GCI Arts. 1617, GCII Art. 19); protected civilians deprived of their liberty (GCIV Art. 136); deceased civilian internees (GCIV Art. 130); and children in occupied territory whose identity is in doubt (GCIV Art. 50(4).)

The NIB has been assigned different tasks to ensure that information of those covered by it reaches the CTA as rapidly as possible. Its main tasks are (see here for a comprehensive note on the legal framework governing National Information Bureaux):

  • Collect and centralize information

National authorities have an obligation to gather information related to all persons protected under the GCs who are in their power alive or dead. They must share such information with their NIB, which has the responsibility to collect and centralize it for further transmission. National authorities must also require all the various services and departments that may have such information to transmit it to the NIB as quickly as possible (Art. 16 GCI, Art. 19 GCII, Art. 122 GCIII; Arts. 136137 GCIV.). The type of information the NIB must collect varies slightly according to the category of persons in question. For persons in all categories, it must collect particulars about their identity. It must also collect information on any measures taken and must be kept up to date, including information regarding measures such as transfers, releases and deaths. (GCIII Art. 122 and GCIV Art. 138.)  

  • Transmit information to the Central Tracing Agency

A core obligation of the NIB is to transmit information ‘immediately’ and ‘by the most rapid means’ to the Powers concerned, through the CTA, with the purpose of informing the families.

  • Receive and respond to enquiries

The NIB must also reply to all enquiries it receives regarding protected persons. If the NIB does not possess the relevant information, it must conduct its own enquiries to obtain it as soon as circumstances permit, and at the latest from the end of active hostilities, to respond.

The Geneva Conventions do not specify who can request information from NIBs. Enquiries can be made by different people or entities, including the CTA, the adverse party, humanitarian organizations (e.g. ICRC or National Societies), and family members. National authorities may (and in practice usually do) decide to channel applications through the CTA. What is important is that those that want to make enquiries know where to address them and that they receive a response.

Finally, States may decide to assign other tasks to their NIBs, including some that are specified in the Geneva Conventions but not expressly entrusted to them. This includes tasks on behalf of those who are already covered by the NIB and those who are not, such as protected civilians and persons covered by API in the hands of the enemy. For example, the NIB could, on behalf of a State’s own nationals, become a focal point for the families by receiving information from the CTA and forwarding this information to families.

Towards ensuring a robust response to the separated, missing, dead and their families

IHL contains a comprehensive set of rules to prevent family separation, keep people from going missing and ensure respect for the dignity of the dead. The legal framework is clear, robust and comprehensive, but to have an impact on those it seeks to protect, States must uphold their obligation to respect IHL and be prepared during peacetime to be ready as soon as a war starts. Without immediate action, there is a risk that people fall through the cracks of war and never receive an answer. It is only by ensuring the right interlinkages between the different information pathways, that families will be able to look for and receive an answer in a dignified manner that does not cause any harm without having to wait for years or decades.

Enshrined in IHL, the CTA and the NIB remain as relevant as ever to ensure that information is collected, centralized and transmitted as safely and rapidly as possible. The CTA and the NIB can also serve as an inspiration for States and parties to armed conflicts to be prepared and fulfill their broader IHL obligations, including in the many non-international armed conflicts prevalent throughout the world today. For instance, even if there is no obligation to establish NIBs in non-international armed conflicts, it is possible to do so if deemed useful to give effect to IHL rules applicable in a given context.

Lastly, let’s not forget that the CTA has transformed itself repeatedly throughout its 150 years of history, to remain agile enough to adapt when people needed it the most. It is today going again through a five-year transformation programme to improve its capacity to search, adapt to technological changes of recent decades and reinforce the services it provides. The same commitment is required from States, which must continue upholding the law and adapting to new circumstances. The ICRC works with States and parties to conflicts towards these goals and has developed resources to support them in this endeavor.

Together, the Central Tracing Agency and the National Information Bureau may bring enormous relief to families by letting them know their loved one is alive. But the news they carry may also bring great sadness to families when they must inform them that a loved one is dead.  The suffering of families cannot be ignored and letting them know the fate and whereabouts of their loved ones in a dignified and respectful manner is crucial to preserving humanity in war.

[1] For example, Arts. 70 GCIII, Art. 106 GCIV, Arts. 32-34 Additional Protocol I (API) of 1977 and ICRC Study on Customary International Humanitarian Law,  rules 116, 117 and123.

[2] For further references to the CTA’s mandate and tasks in international armed conflicts, see, for instance, Articles 25 and 110 GCIV and Article 78(3) API.

[3] See for instance Art. 140 GCIV, which explicitly provides for an exception for the transmission of information for protected persons under GCIV. In the case of prisoners of war, although Art. 123 GCIII does not provide for an exception to the transmission of information to the prisoners country of origin or to the power in which they depend, ‘in practice the appropriateness of transmission will always be checked against the harm it might cause to the person concerned or to their families’. See ICRC Commentaries to the Third Geneva Convention, 2020  (here).

Share this article

Comments

There are no comments for now.

Leave a comment