Approaches and Standards
For instance, in the History of the Peloponnesian War, Thucydides records that in a funeral procession of those who had fallen in battle for Athens, “one empty bier was carried decked for the missing, that is, for those whose bodies could not be recovered”. The procession was a public manifestation, woven into the fabric of democratic society, according to Pericles, who is recorded as speaking at one of these occasions. The acknowledgement was symbolic, but the symbolism was important.
In 1863, Henry Dunant, appalled by the treatment of the wounded on the battlefield of Solferino, noted that the dead, as well as those who were mortally wounded, were buried in shallow trenches and then simply declared “missing”. As Florence Nightingale had previously highlighted while working in the Crimea, Dunant also called for changes in military practice with regard to the dead and the missing. Meanwhile, people who went missing in peacetime received scant attention, even though the numbers were substantial.
The conduct of today’s investigatory processes, involving prosecutors, courts, forensic scientists and other specialists are based on standards and norms that underpin and interrelate with law-based institutions, affecting a wide range of issues, including the conduct of effective investigations, safeguarding the rights of families of the missing, and ensuring that justice is served, including reparatory justice and guarantees of non-repetition, where applicable.
Personal Data Processing
Generally, when processing personal data, including sensitive personal data such as genetic data, the rights and interests of the person providing the data (the “data subject”) have priority over the rights and interests of society. One of the legal bases for processing personal data is consent and ICMP only processes personal data with the informed consent of the data subject, who is often a family member of a missing person.
Informed consent means that the data subject understands sufficiently:
- Who will receive the information provided.
- For what purposes the information will be used.
- How the information will be managed and protected.
In addition, data subjects should always be able to:
- Control their personal information.
- Have the ability to access, update, amend, or withdraw such information as they deem necessary.
- Ensure that personal data, including the nature of family relationships, will only be accessible to those who need to see it for the purposes for which the information was collected.
- Ensure that their personal data will be deleted once it is no longer needed, for instance because their missing relative(s) has been found.
Sensitive personal information such as medical conditions or DNA samples and profiles must be accompanied by the data subject’s written consent and include the information above. The right to privacy is a fundamental human right recognized in Article 12 of the Universal Declaration of Human Rights, which underpins human dignity, autonomy, and liberty.
Data protection is central to ICMP’s approach to data processing: ICMP implements extensive measures to prevent the accidental loss of data, data theft, data manipulation, or other forms of unauthorized processing, unwanted disclosure or illegal seizures of data. As an intergovernmental organization, ICMP has the capacity to enter into agreements under international law to ensure the safe processing of personal and other data.
Effective Investigations
Wrongs of the past, especially those associated with human rights violations and abuses, must be redressed through effective investigations to reinstate the public trust in, and credibility of, State institutions.
Investigations must be effective and aimed at clarifying the whereabouts and fate of those who are missing for involuntary reasons. Elements to ensure the effectiveness of an investigation include that the investigation should be conducted by an investigating agency that is sufficiently independent of those who are subject to the investigation, and that this agency is vested with relevant powers and expertise in order to conduct the investigation adequately. The investigation should be carried out promptly, and victims and their families should be permitted to participate to the extent necessary to safeguard their legitimate interests. Courts have held that withholding information from families of the missing constitutes a violation of the right not to be subjected to torture or cruel, inhuman, or degrading treatment or punishment.
Important Court decisions include:
- European Court of Human Rights: Cyprus v. Turkey (2001), and Cyprus v. Turkey (2014); Rod v. Croatia (2008); and Varnava and Others v. Turkey (2009)
- Inter-American Court of Human Rights: Velasquez Rodriguez v. Honduras (1988); Blake v. Guatemala (1998); Serrano-Cruz Sisters v. El Salvador (2004); Goiburu v. Paraguay (2006); Garzon Guzman et al. v. Ecuador (2021); and Julien Grisonas Family v. Argentina (2021)
- Court of Justice of the Economic Community of West African States: Stella Ifoema Nnalue and 20 others v. The Federal Republic of Nigeria (2015)
- The MinnesotaProtocol.pdf (ohchr.org), the Bournemouth Protocol on Mass Grave Protection and Investigation published | Bournemouth University, and Interpol’s Disaster Victim Identification Guide also provide guidance on investigations
