Missing
Persons and Models of Trans-border Cooperation
Ana Kron, former Government Relations Coordinator in Serbia, International
Commission on Missing Persons
The purpose of this paper is to create an understandable picture of the
activities which have been carried out in the countries of former Yugoslavia
affected by armed conflicts, regarding the issue of persons who went missing as
a consequence of those conflicts, as well as of the efforts undertaken among
official state bodies and relevant international organizations in resolving
this complex matter.
Addressing injustices of the past, by a variety of means, is crucial for
the future of a society. A post-conflict society cannot function without this
major humanitarian problem resolved. This paper provides an overview of some of
the major acoplishments, as well as some of recent developments regarding the
missing persons issue, that could lead toward social and psychological healing
and, consequently, to rebuilding lasting peace in the region.
The paper is primarily intended for policymakers, national or
international, directly or indirectly involved in the missing persons issue,
and secondarily for the wider audience, in order to raise the level of public
awareness of the issue itself.
I Introduction
There are few issues that are more
politically complex, technically challenging and emotionally difficult than the
issue of persons missing as a result of armed conflic or other crimes against
humanity.
1992
UN Declaration on the Protection of All Persons from Enforced Disappearance describes
disappearance as:
...
in the sense that persons are arrested, detained or abducted against their will
or otherwise deprived of their liberty by officials of different branches or
levels of Government, or by organized groups or private individuals acting on
behalf of, or with the support, direct or indirect, consent or acquiescence of
the Government, followed by a refusal to disclose the fate or whereabouts of
the persons concerned or a refusal to acknowledge the deprivation of their
liberty, thereby placing such persons outside the protection of the law. [1]
International humanitarian law contains
several provisions stipulating that families have the right to know what has
happened to their missing relatives and that the warring parties must use every
means at their disposal to provide those families with information.[2]
The concept of the right to the truth
owed to the victims of human rights violations and their families has taken on
increasing importance in recent decades; one only has to look at the work
undertaken in Argentina between 1984 and the present day, or June 2006 adoption
by the United Nations Human Rights Council of the United Nations Draft
Convention on the Protection of All Persons from Enforced or Involuntary
Disappearances. This concept finds its roots in international humanitarian law
in regard to the right of families to know the fate of their relatives,
together with the obligation of parties to armed conflict to search for missing
persons. In terms of the human rights violations for which the question of the
right to truth arises, international human rights bodies have recognized the
right to truth in cases of gross violations of human rights, in particular
enforced disappearances. However, the right to truth of victims of human rights
violations and their relatives has not generally been explicitly recognized in
national legislation. Even though, for many countries the right to truth is
implicitly recognized in national legislation. National human rights
institutions can play an important role in ensuring the right to truth for
victims, their relatives and the society. Truth finding investigations and
public reports can contribute to exposing the truth, or sometimes confirming
the truth.
Such efforts encourage and assist States in embedding
into domestic legal and administrative infrastructures the body of norms and
standards articulated by the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, and other human rights
instruments. For example, the European Court has determined that the suffering
of surviving family members who seek information about missing loved ones can
be a continuing violation of Article 3 of the European Convention on Human
Rights; i.e. that the suffering of these family members has a dimension and character
distinct from the emotional distress caused to relatives of other victims of
serious human rights violations. By translating provisions of these human
rights instruments that address missing persons into operating legal mechanisms
at the state level, States should be encouraged in meeting their obligations
toward those who have gone missing as a result of gross violations of human
rights and to their surviving family members.
As well as the often huge emotional burden of not knowing
the fate of loved ones, families of missing persons face a whole host of other
problems, including many economic and financial difficulties.
According to the data of the
International Commission on Missing Persons (ICMP)[3],
of the 40,000 persons originally missing in the region from the conflicts
during the 1990s, it is estimated that as of the year 2006, approximately
20,000 were still unaccounted for, of which 15,000 are unaccounted for in
Bosnia and Herzegovina, 2,500 are missing in Croatia and 2,500 are missing from
the conflict in Kosovo. This, despite the fact that the Right to Know the fate
of missing relatives is a fundamental right of the families concerned and
should be respected and enacted. The fact that violations of international
humanitarian law do occur does not mean that this body of law is inadequate,
but because those rules are not observed.
II
Regional Overview
1) Republic of Serbia
In
Serbia , 1440 persons are
still unaccounted for, following the armed conflicts in Bosnia and Herzegovina , Croatia
In
the nineties, progress on the issue of missing persons from the conflicts in Croatia and Bosnia and Herzegovina Croatia
and Bosnia and Herzegovina Federal Republic of
Yugoslavia for Humanitarian Issues and Missing Persons
was the only State body responsible of the missing persons issue, with its
mandate covering the missing from armed conflicts in Croatia
and Bosnia and Herzegovina Republic
of Serbia Coordination Center
After the
independence of Montenegro
in 2006, The Commission on Missing Persons of the Council of Ministers of
Serbia and Montenegro has
been transformed into the Commission on Missing Persons of the Republic of Serbia
Documents
that form the basis of activities and mandate of the Commission are: Geneva
Convention and additional protocols on the protection of war victims, the
provisions of the General Framework Peace Agreement for Bosnia and Herzegovina,
referring to missing persons, the Agreement on the Cooperation in the Search
for Missing Persons, signed on November 17,1995, in Dayton by the Federal
Republic of Yugoslavia and the Republic of Croatia and the Protocol on the
cooperation between government commissions for the search for missing persons
between the Federal Republic of Yugoslavia and the Republic of Croatia, signed in
1996 in Zagreb.[4]
The
Agreement and the Protocol regulate in detail mutual relations, obligations and
the manner of joint work of government commissions, until the final resolution
of all cases from the respective lists of both parties.
a)
UN administered Kosovo
The
problem of persons missing in relation to the events in Kosovo is particularly
complex.
It is estimated that
4,400 persons were missing at the end of the conflict in Kosovo. Statistical
assessments based on blood collection in Kosovo and DNA matching efforts of the
International Commission on missing Persons (ICMP) lead to the conclusion that
the mortal remains of at least 1,500 missing persons must still be located and
recovered.[5]
A failure to properly address the existence
of mass graves and large numbers of persons missing from the Kosovo conflict
could pose a fundamental problem for further peace building and reconciliation
efforts in the region. This was noted by
Kai Eide in his report to the Security Council of October 2005.
Kosovo
is currently administered by the United Nations Mission in Kosovo (UNMIK),
while final status of the territory remains to be determined. The UNMIK Office
of Missing Persons and Forensics (OMPF) is responsible for managing the missing persons’ operation
in Kosovo.
As long as
the international community is responsible for the administration of Kosovo and
has retained competence for resolving the issue of missing persons, it should
ensure that progress is made and that the necessary financial and human
resources are available to speed up identification and return processes of
human remains and to help the families of missing persons.
2) Republic of Croatia
2,500
persons still missing in Croatia
Office for
Detained and Missing Persons of the Republic
of Croatia Republic
of Croatia and the Republic of Serbia Bosnia and Herzegovina
In early
2006 the Republic
of Croatia Montenegro
Also of note
is the fact that the Republic of Croatia is the only country in the former Yugoslavia
3) Bosnia and Herzegovina
At the end
of the conflict in 1995 an estimated 30,000 persons were unaccounted for in Bosnia and Herzegovina Bosnia and
Herzegovina Herzegovina
Coordinating
the work of the three sides in Bosnia
and Herzegovina
In
2005, the BIH Council of Ministers officially approved establishing Missing
Persons Institute (MPI), with ICMP as a co-founder. The Institute represents an
effort to integrate the BIH government into a national structure that
represents all three majority ethnic/religious groups in the pursuit of a
common goal: to resolve the fate of persons missing from the conflicts in Bosnia
In
parallel with the process of establishing the Missing Persons Institute, ICMP,
ICRC, as well as the families of the missing and local government and legal
institutions assisted the Council of Ministers in drafting a law on missing
persons which safeguards the right of families to know the fate of a missing
loved ones and assert their rights for effective domestic remedies.
Preparation
of the Law on Missing Persons in Bosnia and Herzegovina November 9, 2004 .[6]
This
creates a sustainable, independent institution at the State level working on
the determination of the fate of all missing persons regardless of ethnicity. The
Law on Missing Persons, inter alia, provides for eased evidentiary requirements
and access to benefits and adjustment of marital status, all of which was
previously not available to family members of the missing. It also mandates the
creation and verification of the Central Evidentiary List of Missing (CEN)
within the MPI.
By
the end of 2006, the UN Human Rights Committee issued its Concluding
Observations on Bosnia and
Herzegovina
Although
the Law has been passed, some secondary legislation, as well as agreement
between the Entities to support the financial provisions, has yet to be
completed.
The law is the first of its kind in the world, and could
prove to be a model for other countries.
Family associations in Kosovo, for example, are keen to put a
similar law in place. The law may also provide a template for help in Iraq Bosnia
4) The Former Yugoslav Republic of Macedonia
Although
there were only 22 known cases of disappearances from the 2001 crisis, the fate
of the missing had proven to be an impediment to building a viable political
process through the implementation of the Ohrid Agreement. One of the reasons
the issue of the missing was so politicized was that persons at high levels of
the crisis-era Government and the former National Liberation Army (NLA) had
been implicated in some of the disappearances.
In
December 2003 the Government appointed two Coordinators for the issue of the
missing, to work in conjunction with ICMP and relevant State authorities. That
mechanism continues to function in Macedonia
III International organizations
Among
numerous international organizations assisting in different capacities and in different
ways in resolving the missing persons problem in the Balkans, there are two key
organizations primarily dedicated to this issue: the International Commission on
Missing persons (ICMP) and the International Committee of Red Cross (ICRC).
1)
International Commission on Missing
persons (ICMP)
International
Commission on Missing persons (ICMP) is an inter-governmental organization that
was created in 1996, following the G-7 Summit, in Lyon ,
France , to address the issue
of persons missing as a result of the different conflicts relevant to Bosnia and Herzegovina , the Republic of Croatia
and Serbia and Montenegro Sarajevo
ICMP
endeavors to secure the cooperation of Governments and other authorities in
locating and identifying persons missing as a result of armed conflicts, other
hostilities or violations of human rights and to assist them in doing so.
ICMP
also supports the work of other organizations in their efforts, encourages
public involvement in its activities and contributes to the development of
appropriate expressions of commemoration and tribute to the missing.[8]
In
the former Yugoslavia ,
especially in Bosnia and
Herzegovina
The
processes set in motion have been significantly enhanced by ICMP’s technical
ability to deploy scientifically accurate forensic analysis including DNA on a
large scale. To the population of the region, that ability means that certainty
regarding the fate of the missing can eventually be obtained. To local
authorities it means, inter alia, that misidentifications or retention of
information regarding the fate of the missing will be exposed with equal
certainty.
DNA provides
a level of precision regarding who was killed and the number of persons that
were killed and recovered from mass graves that would not have been imaginable
a decade ago. Because it provides irrefutable evidence of identity it is a very
powerful political tool in the context of conflicts in Balkans.
The
work of ICMP as a whole can be seen as a significant factor that contributes to
the process of States moving towards truth, justice and reconciliation. Using
sound, internationally recognized forensic science as a human rights tool to
resolve cases of disappearances has been successful not only in bringing
individual closure to families of the missing, but in accurately documenting
crimes against humanity, in other words producing an historical record that can
not be manipulated for political goals.
2)
International Committee of Red Cross
(ICRC)
The
International Committee of the Red Cross (ICRC) is an impartial, neutral and
independent organization whose exclusively humanitarian mission is to protect
the lives and dignity of victims of war and internal violence and to provide
them with assistance. It directs and coordinates the international relief
activities conducted by the Movement in situations of conflict. It also endeavors
to prevent suffering by promoting and strengthening humanitarian law and
universal humanitarian principles. Established in 1863, the ICRC is at the
origin of the International Red Cross and Red Crescent Movement.[9]
Prior
to the drafting of the General Framework Agreement for Peace in Bosnia and Herzegovina , which the parties
negotiated in Dayton , Ohio ,
in autumn 1995, the United
States
Efforts of
the ICRC include: bringing the different authorities together to discuss the
problem and to exchange information, collecting the ante-mortem data on missing
persons and compiling the lists of missing persons, providing legal assistance
to families of missing persons and raising awareness among local authorities
and the general public of the problems faced by these families, as well as by
providing psycho-social support to these families and support to family
associations.
Some 32 542 people have been reported
missing to ICRC as a result of armed conflicts in the Balkans.
IV
Trans-border cooperation
Trans-border
cooperation can be defined as bilateral, multilateral or through the assistance
of international organizations. In the period immediately following the armed
conflicts in the region, the main part of any cross-border cooperation between
states, being bilateral or multilateral,
was carried out with the assistance and/or supervision of international
organizations involved in the missing persons issue. They played an outstanding
role in bringing together parties in conflict to discuss matters as important
as the missing persons issue. In the subsequent transitional period, bilateral
agreements between States have been established, with some of them still
pending, and a joint effort has been put into resolution of this major
humanitarian problem.
There
has been some progress in recent years, including the recent adoption of a
State Law on Missing Persons in Bosnia
and Herzegovina
i.
The
bilateral agreement and protocol on cooperation exist between the Republic of Croatia
and the Republic
of Serbia Serbia and Croatia
ii.
Identification
of victims missing from armed conflict and enforced disappearance is an
extremely difficult process not only because of the time that has elapsed, but
because in many cases the perpetrators removed mortal remains from one location
and hid them in another in an attempt to conceal evidence of war crimes, thus
leaving a trail of disarticulated skeletal remains. Government and
other political bodies who have committed acts of enforced dissappearences are
reluctant to come forward with information. The lack of information on the
locations of individual and mass graves presents the major problem. However,
information relevant to war activities on the territory of the Republic of
Croatia has been de-classified.
iii.
Montenegro Republic of Croatia is interested in cases of missing persons
related to both Croatia and Montenegro
iv.
In
February 2002, three protocols were signed establishing collaboration between
UNMIK and then Federal Republic
of Yugoslavia
v.
The
Working group on people missing in Kosovo was set up in March 2004 to find out
what happened to persons still unaccounted for in connection with the events in
Kosovo between January 1998 and December 2000 and to address the needs of their
families. It meets under the auspices of the UN secretary-general’s special
representative for Kosovo and is chaired by the ICRC in its capacity as a
neutral intermediary.
vi.
For
this process to achieve further results, it is essential that both the Belgrade Belgrade
The importance of the missing persons issue between Belgrade
Article 5
Missing Persons
5.1 Kosovo and Serbia
shall, in accordance with domestic and international norms and standards, take
all measures necessary to determine and provide information regarding
identities, whereabouts, and fates of missing persons, in full cooperation with
the International Committee of the Red Cross (ICRC) and other relevant
international partners.
5.2 Kosovo and Serbia
shall continue to take part meaningfully, effectively, and without undue delay
in the Working Group on Missing Persons established in the framework of the “Vienna
vii.
There
is still no bilateral agreement on the missing persons issue between the Republic of Croatia
and Bosnia and Herzegovina Croatia
viii.
Serbia is also awaiting the drafting and
signature of an agreement and/or protocol on cooperation with Bosnia and Herzegovina
ix.
The
International Conference on the Missing that was hosted by the ICRC in Geneva
x.
The
Joint Project between the Government of Croatia, Ministry of Family, Veterans'
Affairs and Intergenerational Solidarity and the ICMP was signed in 2004. The
objective of the project is to jointly resolve outstanding cases of missing
persons using a DNA-led system of identifications, through the exchange of
biological samples and DNA profiles. The project should result in the closing
of a significant number of cases of missing persons in Croatia , Serbia
and Bosnia and Herzegovina
xi.
In
2001, ICMP signed an agreement with the Coordination
Centre for Kosovo and Metohija, at that time relevant to missing persons
from the Kosovo conflict. This agreement also called for a DNA-led
identification process and allowed ICMP forensic archaeologists and
anthropologists to assist in the excavations in Serbia Federal Republic of
Yugoslavia
xii.
In
December 2006, ICMP and ICRC organized the second meeting on regional
cooperation on the missing persons issue between representatives of the
governments of Bosnia and Herzegovina ,
the Republic of Croatia
and the Republic
of Serbia
The participants agreed: (1) to take continued action in support of the creation of protocols between Croatia and BIH and Serbia and BIH regarding cooperation on missing persons issues; (2) to support the establishment of a Commission on Missing Persons in Montenegro; (3) to prioritize multiethnic activities of associations of families of the missing; and (4) to improve communication among the attendees by organizing Regional Cooperation Meetings three times yearly.
The participants agreed: (1) to take continued action in support of the creation of protocols between Croatia and BIH and Serbia and BIH regarding cooperation on missing persons issues; (2) to support the establishment of a Commission on Missing Persons in Montenegro; (3) to prioritize multiethnic activities of associations of families of the missing; and (4) to improve communication among the attendees by organizing Regional Cooperation Meetings three times yearly.
xiii.
The
ICRC Working Group on the missing in Bosnia and Herzegovina
V
Recommendations
- Create
the agreement between the
- Create
a similar protocol between the
- Establish
a Commission on Missing Persons in
- Increase
support for the establishment of the Kosovo Commission on Missing
Persons/Persons Unaccounted for;
- In
Kosovo, increase the capacity and responsibility at local level for the
missing persons issue with a strong international oversight;
- Depoliticize
issue of missing persons, considering it primarily as a humanitarian
problem, to which all authorities should give priority;
- Create
legal measures in the Republic of Serbia and the Republic of Croatia to
address the problem of missing persons by adopting a state law on missing
persons, introducing the legal status of “missing person”;
- Provide
families of missing persons with the right to an effective remedy,
including compensation;
- Raise
public awareness of the problem of missing persons as a fundamental
concern of international humanitarian law and human rights law;
- Encourage
international organizations, in particular ICMP and ICRC, to transfer
their expertise to national institutions;
- Set
up and develop national capacities specialized in forensic and training
expertise;
- Encourage
family networks and associations and their capacities to manage
information;
- Encourage
associations of families of the missing to engage in joint activities
across national/religious lines;
- Set
up effective national witness protection programs.
VI
Conclusion
Enforced
disappearances infringe upon an entire range of human rights embodied in the
Universal Declaration of Human Rights and set out in the International Covenant
on Civil and Political Rights and other regional instruments, including the
European Convention on Human Rights. Such disappearances have severe
consequences not only for the victims, but also their relatives, which can
involve violations of civil, cultural, economic, political, and social rights.
Progress
in this major humanitarian issue is slow and, as such, jeopardizes efforts in
building a lasting peace in the region. This fact can only add to the bitterness
between the communities affected and obstruct reconciliation. Besides, there is an
ongoing systemic denial of any wrongdoing in the past.
Nevertheless,
clear progress, however slow, has been made in the cross-boundary cooperation
in addressing the missing persons issue. The increasing cooperation between official
bodies, often at an informal level, is a promising development.
The issue of the missing persons remains a burden not only for their families but also for the society as a whole. If a stable and progressive society that would have undergone full recuperation is desired, the resolution of this matter is of crucial importance. Post-conflict reconstruction encompasses social, physical and political reconstruction. Social reconstruction entails rebuilding the human interactions that allow a society to function. The post war society cannot be completely repaired with this major problem left unresolved.
Therefore, the importance of shedding light on the
fate of thousands of missing persons in the Balkans must remain a priority for
the States in
the region.The issue of the missing persons remains a burden not only for their families but also for the society as a whole. If a stable and progressive society that would have undergone full recuperation is desired, the resolution of this matter is of crucial importance. Post-conflict reconstruction encompasses social, physical and political reconstruction. Social reconstruction entails rebuilding the human interactions that allow a society to function. The post war society cannot be completely repaired with this major problem left unresolved.
[1] General Assembly
resolution 47/133, 1992
[2] . Articles 15, 16 and 17 of the First
Geneva Convention of 1949; Articles 122 and 123 of the Third Convention;
Articles 26 and 136 to 140 of the Fourth Convention; and Articles 32, 33 and 34
of Additional Protocol I of 1977.
[3] www.ic-mp.org
[5]
www.ic-mp.org
[6] Official
Gazette of BiH No. 50/04
[7] CCPR/C/BiH/CO/1
[8] The
mandate, www.ic-mp.org
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