desaparicion-forzada

Por: Juan Pablo Acosta

Colombian non-international armed conflicts have left 120.000 missing, and specifically 80,472 forced missing persons.[1]  One of the most relevant humanitarian issues concerns the relatives’ right to know the fate and whereabouts of missing persons. All victims have the right to recover the dead or have access to the burial place.[2]

To prevent or put an end to all these breaches of IHL, there are two main actors called to play a key role to protect civilians and people no longer participating directly in hostilities (wounded, sick and shipwrecked, among others). The first is the Colombian State, which has the obligation to search for missing persons according to various bodies of international and domestic law.   Second, the members of non-state armed groups who are obliged to protect them.[3]

In this series of blog posts, I will examine the relation between IHL and missing persons in Colombian armed conflicts, especially the obligation of the state.[4] In the next few days, I will be forwarding three entries regarding the provisions on IHL on missing persons, and especially the mechanisms used in Colombia for their search.

From my point of view, the relation between IHL and missing persons is a relation of protection, according to the human treatment principle as a norm to IHL. This protection implies a broader approach to the role of IHL about the issue of missing persons. In a situation of armed conflict not of an international character, each Party to the conflict shall be bound to take steps to ensure that they do not disappear during the conflict. If there are, the parties should do everything possible to find out the whereabouts of these people and to let their relatives know.[5]

Missing persons in IHL:

There is no definition of missing persons in IHL. Nevertheless, the term “missing” can be found in Article 32 of Additional Protocol I to the Geneva Conventions which states the right of families to know the fate of their relatives.

The term “missing” is generally understood as that which includes all persons whose whereabouts are unknown to their families. Likewise, some scholars include the definition of enforced disappearance as it is enshrined in the International Convention on the Protection of All Persons from Enforced Disappearance (ICPPED), inside the notion of missing persons. Therefore, the notion of enforced disappearance does not cover all missing persons.[6]

IHL protects missing persons and their relatives through general and specific rules. However, there are four rules with specific content, which I consider totally relevant.  First, all parties of the conflict must search for persons reported missing. Second, the gravesites must be marked. Third, the prohibition against enforced disappearances. And fourth, parties to an armed conflict shall search for and collect wounded, sick, civilians, and dead, as part of customary international humanitarian law, applicable in both international and non-international armed conflict.[7]

Specific Obligations with Key Role in the protection of civilians:[8] 

All people know inside of their hearts which the trauma for the loss is the deepest wound of war. Suffering due to the absence of a father, a mother, or a child, it is the origin of many nightmares. IHL could reduce this emotional pain, through some provision that I mentioned before. The following chart summarizes the content and meaning of these rules: 

All parties of the conflict must search for reports missing.

According to IHL and Human Rights Law, “Each party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate.”[9] In other words, the parties must adopt all the measures as possible to clarify the whereabouts of the disappeared[10] and for searching, recover and identify the dead persons.[11]

The gravesites must be marked

The Protocol I establishes that the gravesites must be marked, it’s important for the families to be informed of the fate of their missing relatives and, when appropriate, the location of their graves, particularly in an internal fratricidal conflict[12]. This obligation is inserted in the Colombian law for non-international conflict by the common article 3 of Geneva Conventions, who establishes that the persons taking no active part in the hostilities be treated humanely. Also, this obligation must be complied with by the parties because it is in the Bloque de Constitucionalidad.

The prohibition against enforced disappearances.

 In IHRL there is the Inter-American Convention On Forced Disappearance Of Persons. Colombia ratifies the Convention, it prevails and is part of the Bloque de Constitucionalidad. 

This Convention establishes that “forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees”

Also, according to with the article 1 of the Inter-American Convention On Forced Disappearance Of Persons, “[t]he States Parties to this Convention undertake not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees” and “[…] to cooperate with another in helping to prevent, punish, and eliminate the forced disappearance of persons”.

Parties to an armed conflict shall search for and collect wounded, sick, civilians, and dead, as part of customary international humanitarian law, applicable in both international and non-international armed conflict.

The Protocol Additional II, article 8 establishes “[w]henever circumstances permit, and particularly after an engagement, all possible measures shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead, prevent they’re being despoiled, and decently dispose of them.” This obligation must be complied with by the parties because it is in the Bloque de Constitucionalidad.

 

As we can realize these rules are focusing on the conduct of parties in armed conflicts, which impose the duty to respect the relatives’ right to know the whereabouts of their families This is a mandate of humanity in all circumstances because the armed conflict should not affect to the civilian population. All these rules operate during hostilities and outside of them. In the following post. I will try to show which would be the relation between IHL and missing persons.

 


[4] According to Colombian Annual Report: Humanitarian Challenges 2019, written by ICRC; currently, there are five armed conflicts in the country; four of them between the Colombian State and armed groups, namely the National Liberation Army (ELN), the People’s Liberation Army (EPL); Dissident structures of the FARC-EP Eastern bloc and the Gaitanista Self-Defence Forces of Colombia (AGC). The fifth between ELN and the EPL.

[5] “Las personas desaparecidas y el DIH” En Comité Internacional de la Cruz Roja (29 de octubre de 2010), <https://www.icrc.org/data/rx/es/war-and-law/protected-persons/missing-persons/overview-missing-persons.htm>, accessed 7 June 2019.

[6] See further information: Wijenayake (n 3). For an example of missing persons: “surrenders”, “missing in action”, “civilian lost”

[7] Customary IHL. Rule 110-117. State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.icrc.org/es/doc/war-and-law/protected-persons/missing-persons/overview-missing-persons.htm

[8] There are more rules regarding the protection of missing persons, but in light of the human treatment principle, I think this has a special role because they are a precondition for finding them.

[9] Customary IHL. Rule 117. State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.icrc.org/es/doc/war-and-law/protected-persons/missing-persons/overview-missing-persons.htm

[10] CG I, articles 16- 17; CG II, articles 19-20; CG III, articles 122-124; CG IV, articles 136-141; PA I, articles 32-33

[11] CG I, articles 15-17; CG II, articles 18-20; CG III, articles 120- 121; CG IV, articles 16; PA I, articles 33-34; PA II, articles 8