By: Juan Pablo Acosta Peñaloza
In my previous post, I advanced an exposition by the rules in international humanitarian law that I consider relevant in the search process for missing persons. In this second post, I intend to present the interpretation that I consider reasonable for the relation between IHL and missing persons.
Article 3 common of GC stated the humane treatment principle as a norm to IHL. This principle enshrines the obligation to each party to non-international armed conflict of “humane treat”. According to IHL, the meaning of human treatment depends on the context and circumstances of the specific case.
In the case of missing persons, at least, humane treatment has two implications. One is the practice indicating that the customary IHL protected the right of families to know the fate of missing relatives. In the light of the humane treatment principle, the concept of missing must be interpreted broadly; and then, each party in armed conflict must take all feasible measures to account for persons reported missing as a result of armed conflict without being linked to enforced disappearance. And second, their relatives are entitled by IHL to know what happened and where they are. Each party, especially State, must provide their family members with any information it has on their fate
For these reasons, IHL has the role of requiring the laws to respect the right of relatives of disappeared persons by answering two questions mentioned before. The state has the international obligation to take all feasible mechanisms to know the fate and whereabouts of missing persons without any other considerations.
There are different approaches to set up mechanisms for searching for missing persons. In the case of Colombian State, I consider IHL has a broader notion of the missing person, all mechanisms to fulfill the protection must take into account the broader approach for the search process of missing.
In other words, the relation between IHL and missing persons is the broader approach in the searching process, with the aim to protect all civilian populations from the effects of the armed conflicts. Colombia has included the IHL rules for missing persons in the Bloque de Constitucionalidad￼ , and it is also in the laws that regulate the transitional justice process in Colombia.
As stated in this post, I must conclude that the relation of IHL and missing persons must be interpreted by means of the humane treatment principle. If this is the heart of the analysis, all mechanisms for searching persons ought to be based on broader notions of what really means “missing persons” according to the IHL. Thus, all mechanisms for searching missing persons under IHL, it should search all missing persons without any other legal consideration- as would be a mechanism that would only search for enforced disappeared persons- in armed conflict.
In the following post, I will examine softly two main mechanisms created in Colombia for searching persons.
See you soon!
CICR. Comentario de los Convenios de Ginebra I. Comentarios al artículo 3 Común (2019). Párr. 556-558.
 Bloque de Constitucionalidad is a concept which means some international rules become part of the constitution at the domestic level, according to constitutional jurisprudence of the constitutional court of Colombian. See more, for example, Constitutional Judgment no. C-067/03, among others.