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Determining the fate of missing persons: The importance of archives for “dealing with the past” mechanisms

Published online by Cambridge University Press:  19 November 2018

Elisabeth Baumgartner  and
Lisa Ott
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Abstract

This article discusses the role of archives of transitional justice and “dealing with the past” (DWP) mechanisms when determining the fate of missing persons. The concept of dealing with the past, the terms “enforced disappearance” and “missing person”, and the specific role of archives in periods of transition are examined. Subsequently, specific questions and challenges related to access and use of archives by DWP mechanisms, including those mechanisms with a mandate to determine the fate of missing persons, are described. Many questions related to access to archives, information management and preservation of records are similarly applicable to DWP mechanisms in general and to specific mechanisms mandated to search for missing persons. The article provides some examples of States’ obligations related to maintaining and providing access to archives that could assist in the search for missing persons under international law and policy. The article concludes by emphasizing the importance of the preservation and protection of archives relevant for dealing with the past. It further highlights the need to grant DWP mechanisms, especially those aimed at determining the fate of missing persons, access to those archives.

Keywords

dealing with the pastarchivesmissing persons/enforced disappearancetransitional justice
Type
Missing person mechanisms
Information
International Review of the Red Cross , Volume 99 , Issue 905: The missing , August 2017 , pp. 663 - 688
Copyright
Copyright © icrc 2018 

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References

1 The United Nations (UN) define transitional justice as “the full range of processes and mechanisms associated with a society's attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.” The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, UN Doc. S/2004/616, 23 August 2004, available at: http://daccess-ods.un.org/access.nsf/Get?Open&DS=S/2004/616&Lang=E (all internet references were accessed in July 2018). The International Centre for Transitional Justice (ICTJ) defines transitional justice as “the ways countries emerging from periods of conflict and repression address large scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response.” See: www.ictj.org/about/transitional-justice. According to the Stanford Encyclopaedia of Philosophy, transitional justice is “a field of academic inquiry, as well as political practice, concerned with the aftermath of conflict and large-scale human rights abuses”. See: https://plato.stanford.edu/entries/justice-transitional/.

2 For a detailed discussion on the concept of dealing with the past, see swisspeace, A Conceptual Framework for Dealing with the Past: Holism in Principle and Practice, swisspeace Essential No. 03/2013, 2013, available at: www.swisspeace.ch/fileadmin/user_upload/Media/Publications/Essentials/Essential_3_2013.pdf; Jonathan Sisson, “A Conceptual Framework for Dealing with the Past”, Dealing with the Past, Politorbis No. 50, Federal Department of Foreign Affairs, Bern, 2010, pp. 11–16, available at: www.eda.admin.ch/publikationen/fr/eda/schweizer-aussenpolitik/reihe-politorbis/archiv-politorbis/politorbis-50.html.

3 J. Sisson, above note 2, p. 14.

4 For the final report of the Commission, see CONADEP, Nunca Más: Informe de la Comisión Nacional sobre la Desaparición de Personas, 1984, available at: www.desaparecidos.org/arg/conadep/nuncamas/ (English version available at: www.desaparecidos.org/nuncamas/web/english/library/nevagain/nevagain_001.htm). See also Thomas C. Wright, Impunity, Human Rights, and Democracy: Chile and Argentina, 1990–2005, University of Texas Press, Austin, TX, 2014, pp. 27 ff.; Emilio Crenzel, “Argentina's National Commission on the Disappearance of Persons: Contributions to Transitional Justice”, International Journal of Transitional Justice, Vol. 2, No. 2, 2008.

5 E.g. in Peru, where the mandate of the Truth and Reconciliation Commission was to investigate killings, torture, disappearances, displacement, employment of terrorist methods and other violations attributable to the State, the Shining Path and the Túpac Amaru Revolutionary Movement between May 1980 and November 2000, during the administrations of former presidents Fernando Belaúnde (1980–85), Alan García (1985–90) and Alberto Fujimori (1990–2000). See United States Institute of Peace (USIP) Truth Commissions Digital Collection, available at: www.usip.org/publications/2001/07/truth-commission-peru-01.

In Guatemala, the Commission for Historical Clarification was tasked with investigating human rights violations and acts of violence that had occurred between January 1962 and 29 December 1996, during thirty-five years of conflict. See Joanna Crandall, “Truth Commissions In Guatemala And Peru: Perpetual Impunity And Transitional Justice Compared”, Peace, Conflict and Development, No. 4, April 2004, p. 5. It operated for two years from 1997 to 999. See also: www.usip.org/publications/1997/02/truth-commission-guatemala.

6 J. Sisson, above note 2, p. 14; Anne-Marie La Rosa and Monique Crettol, “The Missing and Transitional Justice: The Right to Know and the Fight against Impunity”, International Review of the Red Cross, Vol. 88, No. 862, 2006, available at: www.icrc.org/en/international-review/article/missing-and-transitional-justice-right-know-and-fight-against-impunity. See also Vasuki Nesiah, “Overcoming Tensions between Family and Judicial Procedures”, International Review of the Red Cross, Vol. 84, No 848, 2002, available at: www.icrc.org/en/download/file/20255/irrc_848.pdf.

7 Briony Jones, Elisabeth Baumgartner and Sidonia Gabriel, A Transformative Approach to Dealing with the Past, swisspeace Essential No. 01/2013, 2013, available at: www.swisspeace.ch/publications/essentials.html. Transitional justice and “dealing with the past mechanisms often have a tendency to seek closure through an end to direct violence and a desire to manage and somehow neutralise conflict within societies in transition.” Yet conflict transformation is concerned with conflict as part of society and human life, and academics therefore suggest that dealing with the past and transitional justice are part of social and political negotiations. Briony Jones, “Analysing Resistance to Transitional Justice: What Can We Learn from Hybridity?”, Conflict and Society, Vol. 2, No. 1, 2006.

8 The Swiss Ministry of Foreign Affairs and swisspeace, for instance, developed a framework based on the “principles against impunity” developed by legal scholar Louis Joinet in his influential 1997 report to the UN Commission on Human Rights. See Louis Joinet, The Administration of Justice and the Human Rights of Detainees: Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), Final Revised Report Prepared Pursuant to Sub-Commission Decision 1996/119, UN Doc. E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997 (Joinet Principles), available at: https://undocs.org/E/CN.4/Sub.2/1997/20/Rev.1. Professor Diane Orentlicher updated the principles in UN Docs E/CN.4/2005/102 and E/CN.4/2005/102/Add.1, 8 February 2005, available at: www.ohchr.org/EN/Issues/TruthJusticeReparation/Pages/InternationalInstruments.aspx.

9 J. Sisson, above note 2, p. 11.

10 Robins, Simon, Families of the Missing: A Test for Contemporary Approaches to Transitional Justice, Routledge, New York, 2013Google Scholar; see also V. Nesiah, above note 6.

11 See Joinet Principles, above note 8, Principle 3.

12 For a comprehensive overview, see Hayner, Priscilla B., Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, 2nd ed., Routledge, London and New York, 2011Google Scholar.

13 See the references cited in above note 5.

14 Congram, Derek, “Missing Persons and Those Who Seek Them: Questions of Perspective and Place”, in Congram, Derek (ed.), Missing Persons: Multidisciplinary Perspectives on the Disappeared, Canadian Scholars Press, Toronto, 2016Google Scholar. See also S. Robins, above note 10, pp. 19–22.

15 ICRC, “Guiding Principles/Model Law on the Missing”, in The Domestic Implementation of International Humanitarian Law: A Manual, 2015, Annex IV, available at: www.icrc.org/eng/resources/documents/publication/pdvd40.htm. See also Marie-Louise Tougas and Marco Sassòli, “The ICRC and the Missing”, International Review of the Red Cross, Vol. 84, No. 848, 2002, available at: www.icrc.org/en/download/file/20255/irrc_848.pdf. See also the article by Ximena Londoño and Alexandra Ortiz in this issue of the Review.

16 International Convention for the Protection of All Persons from Enforced Disappearance, UN Doc. A/RES/61/177, 20 December 2006 (entered into force 23 December 2010), available at: www.ohchr.org/EN/HRBodies/CED/Pages/ConventionCED.aspx.

17 ICPPED, Art. 2. For a more detailed discussion of this definition, see e.g. Lisa Ott, Enforced Disappearance in International Law, Intersentia, Mortsel, 2011, pp. 15 ff.

18 ICPPED, Art. 3. For a detailed analysis of these circumstances, see e.g. L. Ott, above note 17, pp. 200 ff.

19 For instance, Inter-American Court of Human Rights (IACtHR), Velasquez Rodriguez v. Honduras, Judgment, 29 July 1988, (Ser. C) No. 4 (1988), para. 155; European Court of Human Rights, Kurt v. Turkey, Judgment, 25 May 1998, Reports 1998-III, No. 74, para. 117; Human Rights Commission, Nydia Erika Bautista de Arellana v. Colombia, Communication No. 563/1993, 27 October 1995, para. 8.5.

20 See Declaration on the Protection of All Persons from Enforced Disappearance, adopted by UNGA Res. 47/133, 18 December 1992, available at: www.un.org/documents/ga/res/47/a47r133.htm.

21 See e.g. the fifth preambular paragraph of the ICPPED: “Aware of the extreme seriousness of enforced disappearance, which constitutes a crime and, in certain circumstances defined in international law, a crime against humanity …”. See also the third preambular paragraph of the Declaration on the Protection of all Persons from Enforced Disappearance, above note 20: “Considering that enforced disappearance undermines the deepest values of any society committed to respect for the rule of law, human rights and fundamental freedoms, and that the systematic practice of such acts is of the nature of a crime against humanity …”.

22 See UNGA Res. 68/165, “Right to the Truth”, 18 December 2013, available at: http://ap.ohchr.org/documents/dpage_e.aspx?si=A/RES/68/165.

23 Korostelina, Karina V., “Peace Education and Joint History Textbook Projects”, in Korostelina, Karina V. and Lässig, Simone (eds), History Education and Post-Conflict Reconciliation: Reconsidering Joint Textbook Projects, Routledge, London, 2013, pp. 19 ffCrossRefGoogle Scholar.

24 Jones, Briony and Oliveira, Ingrid, “Truth Commission Archives as New Democratic Spaces”, Journal of Human Rights Practice, Vol. 8, No. 1, 2016CrossRefGoogle Scholar.

25 Antonio González Quintana describes the unfortunate situation in Greece, “which used the documents of repressive bodies in the years immediately after the dictatorship for administrative tasks such as compensation and purging those responsible for repression. The archives were later destroyed, in accordance with new legislation, which judged it undesirable to keep references, in registries and public archives, to people who had been vindicated for activities or attitudes considered illegal in the previous regime. Though it enabled the purging of those responsible and the compensation of their victims, Greece has been left with no written history of the repression, preventing possible new ways of compensation.” Antonio González Quintana, Archives of the Security Services of Former Repressive Regime, Report Prepared for UNESCO on Behalf of the International Council on Archives, 1997, available at: http://unesdoc.unesco.org/images/0014/001400/140074e.pdf.

26 Richard Pearce-Moses, A Glossary of Archival and Records Terminology, Society of American Archivists, 2005, available at: http://files.archivists.org/pubs/free/SAA-Glossary-2005.pdf.

27 In archival science the term “evidential value” means that records which are considered authentic and reliable “are valuable as evidence of the origins, structure, functions, procedures and significant transactions of an institution or organization”. Further, some records are kept for their “informational value”, meaning that they “derive their value and are retained by archives for the information they contain as distinct from their evidential value”. Trudy Huskamp Peterson, The Probative Value of Archival Documents, swisspeace Essential No. 02/2014, 2014, p. 3, available at: www.swisspeace.ch/publications/essentials.html.

28 Altanian Melanie, Archives against Genocide Denialism?, swisspeace Working Paper No. 1/2017, 2017, pp. 6–8, available at: www.swisspeace.ch/fileadmin/user_upload/Media/Publications/SP_Working-Paper_1701-WEB.pdf.

29 See IACtHR, Velásquez-Rodríguez, above note 19, para. 131, where the Court stated that “this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim”.

30 Kaplan, Elisabeth, “We Are What We Collect, We Collect What We Are: Archives and the Construction of Identity”, American Archivist, Vol. 63, No. 1, 2000, p. 147CrossRefGoogle Scholar. Similarly, see Harris, Verne, Archives and Justice: A South African Perspective, Society of American Archivists, Chicago, IL, 2007, p. 13Google Scholar.

31 Schwartz, Joan M. and Cook, Terry, “Archives, Records, and Power: The Making of Modern Memory”, Archival Science, Vol. 2, No. 1–2, 2002CrossRefGoogle Scholar. See also the description of how the military regime in Argentina falsified documentation necessary for its unlawful operations and massive human rights violations, in the commented edition of CONADEP's Nunca Más report: El Nunca Más y los crímines de la dictatura, Buenos Aires, 2006, pp. 142–143, available at: http://librosycasas.cultura.gob.ar/wp-content/uploads/2015/11/LC_NuncaMas_Digital1.pdf.

32 “The American prosecutors at Nuremberg decided the best evidence against Nazi war criminals was the record left by the Nazi German state itself. They wanted to convict Nazi war criminals with their own words. While the Germans destroyed some of the historical record at the end of the war and some German records were destroyed during the Allied bombing of German cities, Allied armies captured millions of documents during the conquest of Germany in 1945. Allied prosecutors submitted some 3,000 tons of records at the Nuremberg trial. More than a decade later, beginning in 1958, the United States National Archives, in collaboration with the American Historical Association, published 62 volumes of finding aids to the records captured by the US military at the end of the war. More than 30 further volumes were published before the end of the 20th century.” See US Holocaust Memorial Museum, “Combating Holocaust Denial: Evidence of the Holocaust Presented at Nuremerg”, Holocaust Encyclopedia, Washington, DC, available at: www.ushmm.org/wlc/en/article.php?ModuleId=10007271.

33 Crenzel, Emilio, Memory of the Argentina Disappearances. The Political History of Nunca Más, Routledge, New York, 2012, pp. 4CrossRefGoogle Scholar, 53, 25, 92.

34 IACtHR, Blake v. Guatemala, Judgment (Merits), 24 January 1998, para. 49.

35 In Canada, the Indian Residential Schools Settlement Agreement (available at: www.residentialschoolsettlement.ca/English.html), which was signed in 2006 and approved by the courts in early 2007, mandated the Truth and Reconciliation Commission of Canada to, inter alia, identify sources and create as complete an historical record as possible of the Indian Residential Schools system and legacy, including the fate of missing children, which included in this context “both those who died at school and those whose fate after enrolment was unknown, at least to their parents”. See Truth and Reconciliation Commission of Canada, Final Report of the Truth and Reconciliation Commission of Canada, Vol. 4, Montreal, 2015, p. 5, available at: http://nctr.ca/reports.php; Alex Maass, “Perspectives on the Missing: Residential Schools for Aboriginal Children in Canada”, in D. Congram (ed.), above note 14.

36 For a general overview of the archives of former repressive States, see A. González Quintana, above note 25.

37 There is a UNESCO World Heritage collection entitled “Archives of Terror”. It is the documentary heritage submitted by Paraguay for inclusion in the Memory of the World Register in 2009 that encompasses the “official documents of police repression during the thirty-five years of Alfredo Stroessner's dictatorship.” This archival collection is of particular interest for transitional justice in Latin America, since it contains “supporting evidence of Operation Condor activities as a part of a campaign of political repressions involving assassination and intelligence operations which was officially implemented in 1975 by the right-wing dictators of the Southern Cone of South America”. See: www.unesco.org/new/en/communication-and-information/memory-of-the-world/register/full-list-of-registered-heritage/registered-heritage-page-1/archives-of-terror/.

38 E.g. in Bulgaria and Germany: see Federal Commissioner for the Records of the State Security Service of the former German Democratic Republic (Bundesbeauftragte für die Stasi-Unterlagen, BStU), The “European Network of Official Authorities in Charge of the Secret Police Files”: A Reader on the Legal Foundations, Structures and Activities, 2nd rev. ed., Berlin, 2014, p. 27, available at: www.bstu.de/assets/bstu/de/Downloads/international_reader-europaeisches-netzwerk_englisch.pdf. This publication gives a good overview of the situation in other former communist States and the existing archives of former State security agencies in Europe (pp. 7, 32). For Greece and other countries, see A. González Quintana, above note 25, p. 7.

39 Joinet Principles, above note 8, Principle 14. A. González Quintana, above note 25, p. 10, underlines: “The right of the people to the integrity of their written memory ought to be unquestioned. If a community chooses to pardon as a means of achieving political transition, this must not result in the disappearance of the documentary heritage of the past. Nations have both a right and an obligation to preserve their memory by depositing it in their archives. Although one generation should be free to decide on the political processes for which they are responsible, they cannot choose for other generations: The right to choose the path to political transition precludes the right to destroy documents.”

40 Louise Bickford, Patricia Karam, Hassan Mneimneh and Patrick Pierce, Documenting Truth, ICTJ, 2009, available at: https://ictj.org/sites/default/files/ICTJ-DAG-Global-Documenting-Truth-2009-English.pdf.

41 At the end of the Cold War, when many Eastern European States underwent regime change, enormous amounts of archival material from State security institutions all over Europe were destroyed. For instance, there are estimations by the Czech Institute for the Study of Totalitarian Regimes and Security Services Archive that “approximately 30% of the documents” in State security archives in the Czech Republic were destroyed in 1989. BStU, above note 38, p. 27.

42 Verne Harris describes “large-scale and systematic sanitisation of official memory authorised at the highest levels of government” in South Africa, which mainly “targeted the records of the security establishment”. He continues: “Between 1990 and 1994 huge volumes of public records were destroyed in an attempt to keep the apartheid state's darkest secrets hidden.” Harris, Verne, “The Archival Sliver: Power, Memory, and Archives in South Africa”, Archival Science, Vol. 2, No. 1–2, 2002, p. 64CrossRefGoogle Scholar.

43 In Germany for instance, employees of the former German Democratic Republic (GDR) Ministry of State Security followed official orders (Vernichtungsbefehle) to destroy large amounts of documents during the peaceful revolution in 1989–90. They wanted to destroy the evidence of unlawful acts and hide the identities of informants. Documents were shredded, burned, put in water or torn apart. When citizens started to occupy the offices of the State Security Service (Stasi) in December 1989, the destruction was stopped, and Germany now has an enormous archive that allows citizens to know what happened in the past, to find out who deserves compensation and to decide who should not be eligible for public office. More information on the work of the BStU, which preserves and protects the archives, is available at: www.bstu.bund.de/EN/Home/home_node.html.

44 See CONADEP, above note 31, p. 217: “La destrucción o emoción de la documentación que registró minuciosamente la suerte corrida por las personas desaparecidas, dispuesta antes de la entrega del gobierno a las autoridades constitucionales, dificultó la investigación encomendada a esta Comisión por el decreto constitutivo.”

45 See A. González Quintana, above note 25, p. 6, describing the lack of access of the Chilean truth commission to relevant archival material: “The Chilean experience is enlightening: those who had most to lose by the disappearance of the documents were the Chilean people and those with most to gain were the agents of the repression and those most responsible for it.”

46 Truth and Reconciliation Commission of Canada, above note 35, p. 5.

47 Gilda Waldman, “La ‘cultura de la memoria’: Problemas y reflexiones”, Política y Cultura, No. 26, January 2006, p. 19, available at: www.scielo.org.mx/pdf/polcul/n26/n26a2.pdf.

48 For example, the State Security Service in the former GDR developed a complicated archival system to hide information. The complicated records management system is described in several publications of the BStU, which safeguards and administers the records of the former State Security Service and makes them accessible. See, for instance, Lucht, Roland, “Karteien, Speicher, Datenbanken: Kern des Informationssystems der Abteilung XII”, in Jedlitschka, Karsten and Springer, Philipp (eds), Das Gedächtnis der Staatssicherheit: Die Kartei- und Archivabteilung des MfS, Archiv zur DDR-Staatssicherheit, Vol. 12, Göttingen, 2015Google Scholar.

49 “The basis for our work has therefore been the statements made by relatives or by those who managed to escape from this hell, or even the testimonies of people who were involved in the repression but who, for whatever obscure motives, approached us to tell us what they knew.” CONADEP, above note 4. As another example, see the Impunity Watch, We Struggle With Dignity: Victims’ Participation in Transitional Justice in Guatemala, Research Report, May 2016, chap. 2, available at: www.impunitywatch.org/docs/Victim_participation_Guatemala.pdf.

50 For example in Argentina, where the NGO Equipo Argentino de Antropología Forense (Argentine Forensic Anthropology Team, EAAF), a scientific organization that applies forensic sciences to investigate serious human rights violations, collected numerous “oral testimonies about disappeared persons and the circumstances in which they were disappeared or killed” from “a number of sources, including relatives of the presumed victims, former prisoners, and former political activists targeted by the state during the dictatorship”. EAAF, 1998 Annual Report: Argentina, 1998, p. 1, available at: http://eaaf.typepad.com/pdf/1998/01Argentina1998.pdf. The EAAF “aims to recover and identify remains, return them to families and provide evidence in court proceedings”; see: http://eaaf.typepad.com/about_us/.

51 See definition available at: https://peacekeeping.un.org/en/disarmament-demobilization-and-reintegration.

52 See the IVD website, available at: www.ivd.tn/?lang=en.

53 E. Crenzel, above note 4, p. 185.

54 Briony Jones and Sandra Rubli, Archives for a Peaceful Future, swisspeace Essential No. 01/2013, 2013, available at: www.swisspeace.ch/publications/essentials.html.

55 E.g. Article 40 of Tunisia's Organic Law No. 2013-53 on Establishing and Organizing Transitional Justice, 24 December 2013 (entered into force 31 December 2013), available at: https://tinyurl.com/yagl9yek.

56 Joinet Principles, above note 8.

57 UN Commission on Human Rights, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, UN Doc. E/CN.4/2005/102/Add.1, 8 February 2005; and see the accompanying reports by Diane Orentlicher: Independent Study on Best Practices, Including Recommendations, to Assist States in Strengthening Their Domestic Capacity to Combat All Aspects of Impunity, UN Doc. E/CN.4/2004/88, 27 February 2004; and Report of the Independent Expert to Update the Set of Principles to Combat Impunity, UN Doc. E/CN.4/2005/102, 18 February 2005.

58 Haldemann, Frank and Unger, Thomas, “Introduction”, in Haldemann, Frank and Unger, Thomas (eds), The United Nations Principles to Combat Impunity: A Commentary, Oxford University Press, Oxford, 2018, pp. 13 ffGoogle Scholar.

59 Joinet Principles, above note 8. For more details, see Valentina Cadelo and Trudy Huskamp Peterson, “Principle 15: Measures for Facilitating Access to Archives”, in F. Haldemann and T. Unger (eds), above note 58, pp. 172 ff.

60 See F. Haldemann and T. Unger, above note 58, p. 14.

61 Ibid., p. 15.

62 CONADEP in Argentina had a limited mandate, namely to investigate the fate of missing persons: Article 1 of Decree No. 187/83 limited its mandate to “clarify[ing] the facts related to the disappearance of persons that occurred in the country” (“Constituir una Comisión Nacional que tendra por objeto esclarecer los hechos relacionados con la desaparición de personas ocurridos en el pais”). See: www.usip.org/files/file/resources/collections/commissions/Argentina-Charter.pdf.

63 Trudy Huskamp Peterson, Final Acts: A Guide to Preserving the Records of Truth Commissions, Woodrow Wilson International Center for Scholars, Washington, DC, 2004, pp. 24 ff., available at: www.wilsoncenter.org/sites/default/files/Petersonfinpdf.pdf. For East Timor, see Commission for Reception, Truth and Reconciliation in East Timor (Comissão de Acolhimento, Verdade e Reconciliação de Timor-Leste, CAVR), Chega! Final Report of the Commission for Reception, Truth and Reconciliation in East Timor, 2013, chap. 7.2, available at: www.chegareport.net/.

64 David Thomas, Simon Fowler and Valerie Johnson, The Silence of the Archive, American Library Association, 2017, pp. 10 ff., 101 ff.

65 See e.g. “Part 1: Introduction”, in CAVR, above note 63, available at: www.etan.org/etanpdf/2006/CAVR/01-Introduction_CAVR.pdf; P. B. Hayner, above note 12, pp. 228 ff.

66 Truth and Reconciliation Commission of Canada, above note 35.

67 In Argentina, thousands of files and documents dating back to the military dictatorship were found in 2013, thirty years after CONADEP had ended its work, in premises of the Navy. They contained important information regarding missing persons. “Listas negras y otros documentos secretos de la Junta Militar argentina”, BBC Mundo, 4 November 2013, available at: www.bbc.com/mundo/ultimas_noticias/2013/11/131104_ultnot_argentina_documentos_regimen_militar_ao and http://mindef.gov.ar/archivosAbiertos/index.php.

68 In Paraguay, about “700,000 documents forming a complete record of the activities of the Paraguayan secret police over three decades – a cache that became known as the Archive of Terror” – were discovered in 1995. They contain crucial information on missing persons and were used, inter alia, in criminal trials in Argentina in the Operation Condor case. See Simon Watts, “How Paraguay's ‘Archive of Terror’ put Operation Condor in Focus”, BBC World Service, 22 December 2012, available at: www.bbc.com/news/magazine-20774985. Today the “Archives of Terror” form part of the Museo de la Justicia at the Supreme Court in Asunción and of the UNESCO Memory of the World Program. More information is available at: www.pj.gov.py/contenido/132-museo-de-la-justicia/334 and www.unesco.org/new/en/communication-and-information/memory-of-the-world/register/full-list-of-registered-heritage/registered-heritage-page-1/archives-of-terror/. See also Katie Zoglin, “Paraguay's Archive of Terror: International Cooperation and Operation Condor”, University of Miami Inter-American Law Review, Vol. 32, No. 1, 2001.

69 In Guatemala, a vast archive of the former National Police of Guatemala that was responsible for numerous serious human rights violations in the Guatemalan Civil War, including enforced disappearance, was discovered in 2005. For more information, see the website of the Archivo Histórico de la Policía Nacional, available at: http://archivohistoricopn.org/.

70 E.g. in East Timor, where the truth commission “issued a call to all persons and organisations in possession of relevant records to forward these materials to the CAVR”. See “Part 1: Introduction”, in CAVR, above note 63, para. 110, available at: www.etan.org/etanpdf/2006/CAVR/01-Introduction_CAVR.pdf.

71 Ibid., paras 113 ff.; P. B. Hayner, above note 12, pp. 228 ff.; Ciorciari, John and Franzblau, Jesse, “Hidden Files: Archival Sharing, Accountability, and the Right to the Truth”, Columbia Human Rights Law Review, Vol. 46, No. 1, 2014Google Scholar, available at: https://ssrn.com/abstract=2446205.

72 T. Huskamp Peterson, above note 63, p. 25. A subpoena is a writ/order known in different Anglo-Saxon legal systems which is usually issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. See “Subpoena”, Wex, Legal Information Institute, Cornell Law School, available at: www.law.cornell.edu/wex/subpoena.

73 According to Article 17 of Organic Law No. 2013-53, above note 55, the commission's work “shall cover the period extending from 1 July 1955 up to the issuance of this law [2013]”. Further, Article 39 limits the tasks of the IVD to “holding private or public hearings for victims of violations”, “examin[ing] … cases of enforced disappearance”, “establish[ing] a unified record of victims of violations”, “determin[ing] the responsibility of the organs of the State or any other parties for … violations, clarify[ing] its reasons and propos[ing] the remedies that prevent the recurrence of such violations in the future”, and “develop[ing] a comprehensive individual and collective program for reparations for victims of violations”.

74 Ibid., Art. 40, para. 1.

75 Ibid., Art. 40, para. 3.

76 Ibid., Art. 40, para. 10.

77 Truth and Reconciliation Commission Act 2000, Supplement to the Sierra Leone Gazette, Vol. 131, No. 9, 10 February 2000, available at: www.sierra-leone.org/Laws/2000-4.pdf.

78 Further, the Sierra Leonean Truth and Reconciliation Commission also had the power “to visit any establishment or place without giving prior notice, and to enter upon any land or premises for any purpose which is material to the fulfilment of the Commission's mandate and in particular, for the purpose of obtaining information or inspecting any property or taking copies of any documents which may be of assistance to the Commission, and for safeguarding any such property or document; (c) to interview any individual, group or members of organisations or institutions and … to conduct such interviews, in private; (d) … to call upon any person to meet with the Commission or its staff …; (e) to require that statements be given under oath or affirmation and to administer such oath or affirmation; (f) to request information from the relevant authorities of a foreign country and to gather information from victims, witnesses, government officials and others in foreign countries; (g) to issue summonses and subpoenas as it deems necessary in fulfilment of its mandate; and (h) to request and receive police assistance as needed in the enforcement of its powers.” Ibid., section 8(1).

79 Ontario Superior Court of Justice, Larry Philip Fontaine et al. v. The Attorney General of Canada et al., 2014 ONSC 283, 14 January 2014; Truth and Reconciliation Commission of Canada, above note 35.

80 Trudy Huskamp Peterson, Temporary Courts, Permanent Records, Woodrow Wilson Center for Scholars, 2008, available at: www.wilsoncenter.org/sites/default/files/TCPR_Peterson_HAPPOP02.pdf; a shorter version of this 146-page report was previously published under the same title by USIP in 2006, available at: www.usip.org/sites/default/files/sr170.pdf.

81 Lina Milner, “The ICTY Legacy in Finding Missing Persons”, in Richard H. Steinberg (ed.), Assessing the Legacy of the ICTY, Martinus Nijhoff, Leiden and Boston, MA, 2011, p. 123.

82 Law on Missing Persons, Official Gazette of Bosnia and Herzegovina, No. 50/04, 9 November 2004, Art. 25, available at: https://advokat-prnjavorac.com/legislation/Law-on-missings-persons.pdf. This law foresees fines for “an official who blocks access to information to a family member of a missing person or to an institution in charge of tracing missing persons” or “who, without justified cause, delays or hinders making available the requested information”.

83 The treaty between the Netherlands, the United Kingdom, Sweden, Belgium and Luxembourg granted the ICMP, an organization that was “created at the initiative of US President Bill Clinton in 1996 at the G-7 Summit in Lyon, France”, a new legal status as “a treaty-based international organization with its own system of governance and international capacities”. Agreement on the Status and Functions of the International Commission on Missing Persons, 15 December 2014.

84 Ibid., Art. 6.

85 In Iraq, for example, the ICMP has signed “an agreement with the four ministries engaged in addressing the missing persons’ process: the Ministry for Human Rights, the Ministries of Health in Baghdad and Erbil and the Ministry of Martyrs and Anfal Affairs”. See: www.icmp.int/where-we-work/middle-east-and-north-africa/iraq/. Ideally, such agreements contain clauses regarding access to government records and archives that are likely to support the search for missing persons.

86 For example, the mandate of CONADEP in Argentina (see El Nunca Más y los crímines de la dictatura, above note 31); the CAVR in East Timor operated from 7 February 2002 to 31 October 2005 and covered the years 1974–99 (see: www.usip.org/publications/2002/02/truth-commission-timor-leste-east-timor); the Truth and Reconciliation Commission for Sierra Leone worked from 2002 to 2005 and covered the years 1991–99 (see: www.sierraleonetrc.org/). The length of the mandate of bodies with the specific humanitarian mandate of searching for missing persons differs. The Terms of Reference of the Committee on Missing Persons (CMP) in Cyprus, which was established in April 1981 by agreement between the Greek Cypriot and Turkish Cypriot communities under the auspices of the UN, does not provide a time limit (see: www.cmp-cyprus.org/content/terms-reference-and-mandate); the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2071 (2014) in Nepal foresees in its Article 38 a mandate of “two years from the date of its constitution” (which has been extended in the meantime) for the Enforced Disappearances Enquiry Commission (see: http://ciedp.gov.np/downloads.php).

87 Gerald O'Sullivan, “The South African Truth and Reconciliation Commission: Database Representation”, in Patrick Ball, Herbert F. Spirer and Louise Spirer (eds), Making the Case: Investigating Large Scale Human Rights Violations Using Information Systems and Data Analysis, American Association for the Advancement of Science, 2000.

88 ICRC, “Guiding Principles and Model Law on the Missing”, Legal Factsheet, 28 February 2009, p. 32, available at: www.icrc.org/en/document/guiding-principles-model-law-missing-model-law.

89 Ibid., pp. 32, 40 ff.

90 Particularly since such information “is increasingly used in relation to criminal investigations”: see Ibid., p. 40.

91 Law on Missing Persons, above note 82. See also Agreement between the International Commission on Missing Persons (ICMP) and the Missing Persons Institute (MPI) Concerning Transfer of Missing Persons and Relatives Data To Become Part of the Missing Persons Institute's Central Records; Juhl, Kirsten, “The Problem of Ethnic Politics and Trust: The Missing Persons Institute of Bosnia-Herzegovina”, Genocide Studies and Prevention: An International Journal, Vol. 4, No. 2, 2009, p. 240CrossRefGoogle Scholar, available at: http://scholarcommons.usf.edu/gsp/vol4/iss2/14.

92 The EAAF “was established in 1984 to investigate the cases of at least 9,000 disappeared people in Argentina under the military government that ruled from 1976–1983. Today, the team works in Latin America, Africa, Asia and Europe.” See the EAAF website, available at: www.eaaf.org/.

93 EAAF, 1998 Annual Report, above note 50, p. 4.

94 “These procedures included writing a description of the find, taking photographs, fingerprinting the corpse, conducting an autopsy or external examination of the body, writing a death certificate, making an entry in the local civil registry, issuing a certificate of burial, and making an entry in the cemetery records. Through these procedures, the bureaucracy created a number of documents containing important information about the ‘disappeared’”. EAAF, 1999 Annual Report: Argentina, 1999, available at: http://eaaf.typepad.com/pdf/1999/03Argentina1999.pdf, p. 8; EAAF, 1998 Annual Report, above note 50, p. 2.

95 See the CMP website, available at: www.cmp-cyprus.org/content/what-we-do.

96 Sonia Zambrano, “The Guatemalan Commission for Historical Clarification”, in P. Ball, H. F. Spirer and L. Spirer (eds), above note 87, p. 288.

97 T. Huskamp Peterson, above note 63.

98 T. Huskamp Peterson, above note 80 (2008 version).

99 Ibid., pp. 10–11.

100 B. Jones and S. Rubli, above note 54, pp. 12–13; B. Jones, E. Baumgartner and S. Gabriel, above note 7, p. 31.

101 See Geneva Convention I (GC I), Arts 16–17; Geneva Convention II (GC II), Arts 19–20; Geneva Convention III (GC III), Arts 122–124; Geneva Convention IV (GC IV), Arts 136–141; Additional Protocol I (AP I), Arts 33–34; Additional Protocol II (AP II), Art. 8; Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar (ICRC Customary Law Study), Rules 112, 116, 117, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/home.

102 ICRC Customary Law Study, above note 101, Rule 117.

103 ICPPED, Art. 12(1).

104 Ibid., Art. 12(3)(a).

105 Article 33 of AP I (available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/470-750040?OpenDocument) foresees specific reporting obligations with regard to “persons who have been detained, imprisoned or otherwise held in captivity for more than two weeks as a result of hostilities or occupation, or who have died during any period of detention”, and persons who “have died in other circumstances as a result of hostilities or occupation”. Such information may be transmitted directly or through the Central Tracing Agency of the ICRC or National Red Cross and Red Crescent Societies. Further, parties to the conflict shall facilitate “arrangements for teams to search for, identify and recover the dead from battlefield” (paras 1–3).

106 ICRC Customary Law Study, above note 101, Rule 123.

107 Ibid., Vol. 2: Practice, Practice relating to Rule 123, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_cha_chapter37_rule123.

108 Ibid.

109 “Moreover, in order to prevent loss of information, each party to an armed conflict has the obligation to record all available information relating to the dead and the personal details of persons deprived of their liberty (GC I, Art. 16; GC II, Art. 19; GC III, Arts 120–121; GC IV, Arts 129–131; CIHL Rules 116 and 123).” ICRC, Missing Persons and Their Families, Factsheet, 31 December 2015, available at: www.icrc.org/en/document/missing-persons-and-their-families-factsheet.

110 ICPPED, Art. 17(3).

111 Ibid.

112 Ibid., Art. 18.

113 Joinet Principles, above note 8; V. Cadelo and T. Huskamp Peterson, above note 59, pp. 173 ff. For IHL, see “Commentary on Article 33 of the first Additional Protocol to the 1949 Geneva Conventions”, in ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, paras 1271 ff., available at: https://tinyurl.com/ybb87epf; ICRC Customary Law Study, above note 101, Rule 117. See also Principle 6 of the Principles of Access to Archives of the International Council on Archives (available at: www.ica.org/en/principles-access-archives), which states: “Institutions holding archives ensure that victims of serious crimes under international law have access to archives that provide evidence needed to assert their human rights and to document violations of them, even if those archives are closed to the general public.”

114 ICPPED, Art. 18(1).

115 Commission on Human Rights, Report of the Intersessional Open-Ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of All Persons from Enforced Disappearance, UN Doc. E/CN/.4/2005/66, 10 March 2005, para. 92.

116 ICPPED, Art. 20(1).

117 Ibid., Art. 20(2).

118 Ibid., Art. 19.

119 P. B. Hayner, above note 12, pp. 227 ff.

120 Truth and Reconciliation Commission of South Africa, Truth and Reconciliation Commission of South Africa Report, Vol. 1, 1998, chap. 8, section 104, available at: www.justice.gov.za/trc/report/finalreport/Volume%201.pdf; Chilean National Commission on Truth and Reconciliation, Informe de la Comisión Nacional de Verdad y Reconciliación, Vol. 1, 1991, p. 5, available at: http://bibliotecadigital.indh.cl/bitstream/handle/123456789/170/tomo1.pdf?sequence=1; CONADEP, above note 4, p. 273.

121 The Tshwane Principles have been drafted by seventeen organizations and five academic centres throughout Africa, the Americas, Europe and Asia based on conversations and information provided by more than 500 experts from more than seventy countries, including government and former government officials and military officers, at meetings around the world over a two-year period. Global Principles on National Security and the Right to Information (Tshwane Principles), 12 June 2013, available at: www.opensocietyfoundations.org/publications/global-principles-national-security-and-freedom-information-tshwane-principles.

122 Organisation of American States (OAS), Model Inter-American Law on Access to Public Information, AG/RES. 2607 (XL-O/10), 8 June 2010, para. 44, available at: www.oas.org/en/sla/dil/docs/Access_Model_Law_Book_English.pdf.

123 Council of Europe Convention on Access to Official Documents, CETS No. 205, 18 June 2009, available at: www.coe.int/en/web/conventions/full-list/-/conventions/treaty/205/signatures?p_auth=VjubcSkv. So far, nine states have ratified this convention; ten ratifications are necessary for it to enter into force.

124 Tshwane Principles, above note 121, p. 5.

125 Ibid., Principle 10.

126 See the references cited in above note 91.

127 Tshwane Principles, above note 121, Principle 10(A)(3).

128 Model Inter-American Law on Access to Public Information, above note 122. The Model Inter-American Law was drafted by the OAS Department of International Law, in cooperation with the Inter-American Juridical Committee, the Special Rapporteur for freedom of expression of the Inter-American Commission on Human Rights, the Department of State Modernization and Effective Public Management, member States, and civil society.

129 Ibid., Art. 2.

130 Ibid., Art. 2.

131 Inter-American Commission on Human Rights, Access to Information, Violence against Women, and the Administration of Justice in the Americas, OAS/Ser.L/V/II.154, Doc. 19, 2015, p. 28, available at: www.oas.org/en/iachr/reports/pdfs/Access-information.pdf.

132 Ibid., para. 36. See also J. Ciorciari and J. Franzblau, above note 71, pp. 27 ff.

133 IACtHR, Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, Judgment (Preliminary Objections, Merits, Reparations and Costs), 24 November 2010, Series C, No. 219, para. 211, available at: www.corteidh.or.cr/docs/casos/articulos/seriec_219_ing.pdf.

134 See information on the website of the Council of Europe at www.coe.int/en/web/conventions/full-list/-/conventions/treaty/205 and J. Ciorciari and J. Franzblau, above note 71.

135 J. Ciorciari and J. Franzblau, above note 71, p. 28.

136 Council of Europe Convention on Access to Official Documents, above note 123, Art. 2, para. 2.

137 See Explanatory Report to the Council of Europe Convention on Access to Official Documents, CETS 205, 18 June 2009, para. 38, available at: https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016800d3836.