Tens of thousands of persons remain missing and still haunt Europe decades after the demise of dictatorships and the end of armed conflicts. For example, Spain has yet to come to terms with its past and shed light on the fate of more than 150 000 persons who remain missing as a result of the Spanish Civil War and Franco’s dictatorship. About 20 000 persons remain missing following the armed conflicts in Cyprus, the former Yugoslavia and the North and South Caucasus. Hundreds of enforced disappearances were documented in Turkey in particular following the 1980 military coup, as well as in early 1990s primarily in the south-eastern part of the country, many of which have not yet been elucidated. Of 16 persons who have been reported as gone missing during the conflict in Northern Ireland seven persons remain unaccounted for. While these cases remain unresolved, more cases of enforced disappearances have been reported in the ongoing conflict in Ukraine.
30 August, the International Day of the Victims of Enforced Disappearance, is an appropriate day not only to reflect on these cases, but to renew our commitment to overcome the remaining obstacles in establishing the fate of missing persons. Thousands of families live in anguish, waiting and hoping to find out the truth about their loved ones. .
The ordeal of missing persons’ families
Families of missing persons often face serious obstacles in accessing social and economic rights, including social benefits and pensions. The issue also has a gender aspect, since most of the missing persons are men. Discriminatory laws sometimes make it impossible for women to access family assets, thus undermining their efforts to look after their families on their own. Measures of reparation to the families of missing persons are sporadic or non-existent. The disappearance of a loved one takes a heavy emotional toll and causes serious trauma even if the truth is finally established. The provision of long-term psychological and psychosocial assistance to the families of missing persons is vital in order to help them overcome their emotional pain.
States have positive human rights obligations
States are obliged to carry out effective investigations and provide information to families about the fate of persons missing as a result of the use of force, including armed conflicts. These obligations derive from the Geneva Conventions and from the European Convention on Human Rights (ECHR). As the Council of Europe Committee of Ministers stressed in the 2011 Guidelines on eradicating impunity for serious human rights violations, states have an absolute duty to investigate cases concerning notably Article 2 ECHR that provides for states’ duty to secure every person’s right to life. States are also bound by Article 3 ECHR which stipulates that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. The European Court of Human Rights has held in many cases that the suffering that families of missing persons endure due to the silence of authorities constitutes inhuman treatment.
Furthermore, under the International Convention for the Protection of All Persons from Enforced Disappearance states are responsible for fighting impunity for the crime of enforced disappearance, preventing new cases of enforced disappearance and guaranteeing the right to the truth and reparation to the families. By Resolution 1956 (2013) concerning missing persons from Europe’s conflicts the Parliamentary Assembly of the Council of Europe called on the member states to accede to this convention which has so far been ratified by only 14 countries in the region..
Major obstacles to the application of human rights standards
Considerable progress has been made in resolving cases of missing persons in Cyprus and in the region of the former Yugoslavia. However, this has not yet been the case in Armenia, Azerbaijan, Georgia and the Russian Federation. Lack of political will appears to be one of the principal reasons for the slow progress in establishing the fate of missing persons in Europe. Limited national capacity and lack of qualified forensic experts in the countries concerned, compounded by economic constraints due to the costly process of DNA identification, are additional obstacles. Moreover, relevant information about new gravesites is often not available either due to witnesses’ fear of testifying, or the lack of co-operation between former rival parties.
The UN Working Group on Enforced or Involuntary Disappearances has voiced its concern about the safety of human rights defenders and lawyers working on enforced disappearance issues, who are often targets of threats, intimidation and reprisals. It has also noted the patterns of impunity in particular with the use of amnesty laws to preclude investigation into crimes of enforced disappearances.
In Spain, it is considered that the 1977 amnesty law prevents any investigation into the fate of persons who went missing between 1936 and 1975. Ineffective judicial proceedings often hampered efforts to shed light on disappearances. In Turkey, statutes of limitation posed additional challenges in recent years, while many missing persons still remain unaccounted for. In my dialogue with the Georgian authorities I have stressed the need to proceed with effective investigations into the cases of missing persons with a view to clarifying their fate and ensuring the accountability of perpetrators, including law enforcement agents.
Steps to be taken
The Parliamentary Assembly of the Council of Europe has listed five priorities that have to be tackled by member states and de facto authorities in Europe: First, putting families of missing persons at the centre of all actions concerning missing persons, in particular by promoting multidisciplinary assessment of their needs.
Secondly, it is necessary to set up an efficient national legislative framework. Member states should in particular ensure that the criminal offence of enforced disappearance is introduced in national legislation, and that perpetrators do not benefit from amnesty or similar measures that may exempt them from criminal responsibility and sanctioning.
Thirdly, there is a need to support the functioning of national and regional mechanisms working on missing persons and to ensure independence and impartiality of such mechanisms. Non-governmental organisations should also be involved and supported, as they play an important role in this field working on cases of missing persons and supporting families.
Fourthly, information on missing persons should be collected, protected and managed by specialised national authorities able to ensure that the identity, location, fate and circumstances of the disappearance are established and that this information is lawfully available to the interested persons.
Lastly, European states concerned need to take all feasible measures to enhance their expertise concerning the management, identification and recovery of human remains of missing persons.
In addition, national and regional mechanisms and international organisations working on missing persons should be provided by states with the necessary financial and human resources so that they can continue and conclude their important work in this field.
These steps are of pivotal importance. Ratification and application by European states of the International Convention for the Protection of All Persons from Enforced Disappearance would be an additional step in the right direction.
The passage of time makes finding and identifying remains harder. However, experience suggests that time will not make this issue go away. We should act now – we owe it to the memory of the victims and we owe it to the families, who need to know the truth.