Abstract
The main aim of the article is to test how states implement international humanitarian law (IHL) with regard to the families of missing persons. The article shows relevant IHL shortcomings and compares them with rules applicable in cases of enforced disappearance. The national legislation collected in the section titled ‘The Missing and Their Families’ of the National Implementation Database of the International Committee of the Red Cross is then examined. The analysis addresses three core questions that are particularly relevant for families of missing persons: (1) Who is considered a missing person under each law? Approaching this question allows the testing of whether states follow the understanding of ‘missing persons’ under IHL treaty law. The second and third questions address two issues that are crucial for families of missing persons that are not addressed in IHL: (2) How is the legal status of the missing person regulated? (3) Are family members provided with measures of reparation and/or assistance? This approach reveals that states rarely apply the IHL understanding of ‘missing persons’ and predominantly exceed IHL by addressing some of the identified shortcomings. It further shows that states provide families of missing persons either with reparation measures – in cases of human rights violations – or, less often, with measures of assistance in post-conflict situations.
Highlights
When persons go missing, their families are deeply affected
The analysis addresses three core questions that are relevant for families of missing persons: (1) Who is considered a missing person under each law? Approaching this question allows the testing of whether states follow the understanding of ‘missing persons’ under international humanitarian law (IHL) treaty law
The second and third questions address two issues that are crucial for families of missing persons that are not addressed in IHL: (2) How is the legal status of the missing person regulated? (3) Are family members provided with measures of reparation and/or assistance? This approach reveals that states rarely apply the IHL understanding of ‘missing persons’ and predominantly exceed IHL by addressing some of the identified shortcomings
Summary
Their families are deeply affected. They suffer from not knowing what has happened to their loved ones, whether they are alive or dead.[1]. I briefly present relevant IHL provisions that show shortcomings with regard to families of missing persons and compare them with relevant human rights law applicable in cases of enforced disappearance, namely the secret deprivation of liberty committed by state authorities.[3] Against this background I analyse national legislation collected in the National Implementation Database of the International Committee of the Red Cross (ICRC) in its section titled ‘The Missing and Their Families’.4. This approach reveals that states do not use the term ‘missing persons’ in the way in which it is applied in IHL treaty law and predominantly exceed IHL by addressing some of the identified shortcomings. The fifth section contains an analysis of domestic legislation from ‘The Missing and Their Families’ section of ICRC National Implementation Database – including consideration of the three questions presented above: (i) Who is considered a missing person? (ii) What is the legal status of missing persons? (iii) What are the rights of families to receive measures of reparation and assistance? This is followed by conclusions in the sixth section
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