International humanitarian law (IHL) provides the normative foundation for efforts to address the issue of missing persons during and after armed conflict. Whilst IHL does not engage with how parties to an armed conflict may go about restoring peace, there has been speculation that resolving the missing issue, by bringing answers to families about the fate and whereabouts of their missing relatives, can potentially play a role in building peace. This article represents an effort to compile existing evidence in academic and practice literature that supports an understanding of how addressing the missing issue relates to peacebuilding. In so doing, the article seeks to lay out a research agenda to understand how addressing the issue of the missing can serve to advance peacebuilding, and proposes avenues for further research.

There are thousands of families of missing persons around the world who search for answers as to the fate and whereabouts of their loved ones, hoping to be reunited with them, or in the event that they are deceased, to be able to mourn and grieve their death with dignity. In practice when authorities speak with families to confirm that the missing person is deceased, two initial questions frequently arise. First, families generally want to know, “did you identify the body of my relative?” The second question, once they receive information that their loved one has been positively identified as deceased, is usually, “how did they die?” This article examines whether international humanitarian law requires providing families of the missing, who may know or believe that their relative is deceased, with an answer to this second question of “how did they die?” The article argues that under certain circumstances, it is a requirement of international humanitarian law to provide some information about the cause, manner and circumstances of death to families. It also argues that the International Red Cross and Red Crescent Movement can strengthen the rights of families of the missing by engaging confidentially (directly or indirectly) with judicial bodies that are charged with both identification of the missing and accountability for violations of international humanitarian law. While this is challenging, it is argued that it is often possible to do so while respecting and adhering to the fundamental principles of the Movement, and, in turn, advancing the fundamental principle of humanity.

This paper examines social, cultural and religious factors that affect the implementation of international humanitarian law concerning dead and missing persons in non-international armed conflicts. To this end, the behaviour of both armed groups and civil society is studied. The argument made in the paper is that in some cases endogenous and exogenous systems of value (social, religious and cultural understandings), operating within the logic of armed non-State actors and within local communities, should be considered by policies concerning the search for missing persons. The Colombian armed conflict is used as case study; the social, cultural and religious practices of the National Liberation Army and the Revolutionary Armed Forces of Colombia – People's Army are analyzed as examples. Likewise, social and cultural values within affected populations can impact on post-conflict mechanisms agreed upon by the parties concerning the search for missing persons, and vice versa. Consequently, customs and traditions such as the “adoption” of unidentified buried people by local communities (social resignification of the dead) and the practices of indigenous communities are reviewed in order to establish a holistic framework.

The main aim of the article is to test how states implement international humanitarian law (IHL) with regard to the families of missing persons. The article shows relevant IHL shortcomings and compares them with rules applicable in cases of enforced disappearance. The national legislation collected in the section titled ‘The Missing and Their Families’ of the National Implementation Database of the International Committee of the Red Cross is then examined. The analysis addresses three core questions that are particularly relevant for families of missing persons: (1) Who is considered a missing person under each law? Approaching this question allows the testing of whether states follow the understanding of ‘missing persons’ under IHL treaty law. The second and third questions address two issues that are crucial for families of missing persons that are not addressed in IHL: (2) How is the legal status of the missing person regulated? (3) Are family members provided with measures of reparation and/or assistance? This approach reveals that states rarely apply the IHL understanding of ‘missing persons’ and predominantly exceed IHL by addressing some of the identified shortcomings. It further shows that states provide families of missing persons either with reparation measures – in cases of human rights violations – or, less often, with measures of assistance in post-conflict situations.

When large numbers of people die as a result of humanitarian emergencies, their bodies and remains are often managed with little consideration for their dignity. This may impact the capacity to identify the deceased and prevent them from becoming missing persons. Many of the existing guidelines for managing the dead in emergencies, including those published by the International Police Organization, the World Health Organization and the International Committee of the Red Cross, are accomplished from a technical point of view, but offer little or no specific guidance on guaranteeing respect for the deceased and their remains. In 2018, the Missing Persons Project of the International Committee of the Red Cross and the Right to Truth, Truth(s) through Rights project of the University of Geneva convened a meeting of experts to discuss the need for developing guidance to guarantee the dignified treatment of the dead in humanitarian emergencies. Participants identified the need worldwide for a set of general principles to guide practitioners and decision-makers in their efforts to ensure respect for dead persons and human remains in humanitarian emergencies, and recommended their development.

In spring 1999, amidst a wider ethnic cleansing campaign, Serb police forces abducted Ferdonije Qerkezi’s husband and four sons, who were never to be seen alive again. She subsequently transformed her private house into a memorial to the lost normalcy of her entire social world. We trace this memorialization process; her struggle for recognition; her transformation into an iconic mother of the nation and her activism, both for missing persons and against the internationally-driven Serb-Albanian normalization process in Kosovo. From a multi-disciplinary perspective, we critically reflect on the theoretical concept of “normative divergence” in intervention studies. We are guided by social anthropological (including immersive, historical-ethnographic, and semantic) analysis of the core tropes of social memory as both narratively and materially embodied by the House Museum. In systematically juxtaposing these to the normative transitional justice principles of truth, justice, non-recurrence, and reparations, and the overarching international intervention goal of reconciliation, we critically interrogate normative divergence per se. The ethnographic “thick description” of this case study—cognizant of context contingency, victims’ agency and experience, cultural change, and social transformation—points to divergent meanings of these principles as resulting directly from the political and institutional failure to provide key transitional justice goals.

In October 2015, by co-sponsoring United Nations Human Rights Council Resolution 30/1 entitled “Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”, the Sri Lankan government formally committed to embarking on a transitional justice process following three decades of armed conflict. Several thousand people allegedly disappeared during this period, often in connection with the armed conflict or as a result of internal disturbances. It is in this context that the Office on Missing Persons (OMP) was operationalized in 2018. This article discusses the nature of tracing investigations into the fate and whereabouts of missing persons of the type to be carried out by the OMP. It argues that these investigations, while ostensibly pursuing a humanitarian approach, cannot be artificially and hermetically separated from criminal justice processes. Further, it seeks to demonstrate that an integrated approach whereby strong linkages with criminal processes are provided for and encouraged best serves the interests of truth and justice.

International humanitarian law and international human rights law seek to prevent people from going missing, and to clarify the fate and whereabouts of those who do go missing while upholding the right to know of their relatives. When implementing international law at the domestic level, national authorities should plan carefully before engaging in any policy or legal reform that will address the issue of missing persons and the response to the needs of their families. This article seeks to present a general overview of the provisions of international law that are relevant to understanding the role of national implementation vis-à-vis the clarification of the fate and whereabouts of missing persons and the response to the needs of their relatives. It also presents the role that the ICRC has played in this regard and highlights three challenges that may arise at the national level when working on legal and policy reforms.

This article examines the different types of mechanisms which can contribute to addressing the issue of the missing, including providing answers on the fate and whereabouts of missing persons. It looks in detail at one approach that the authors have observed in the field. It argues that an approach based on humanitarian objectives which does not look into who is responsible for the disappearance, with proper management of confidential information, could be a powerful instrument for searching for and collecting relevant information on the missing in certain contexts. The article also proposes avenues for further research, with a view to enhancing the global capacity to provide meaningful answers for the missing and their families.

In the last thirty years, tens of thousands of Sri Lankans have experienced enforced disappearances of family members. In 2016, many members of such families came before the Consultation Task Force on Reconciliation Mechanisms, which was mandated to gather views on how people thought the transitional justice mechanisms should be designed, how they should be established and how they should function. This process allowed the families to share their experiences and to outline what they saw as important in shaping the transitional justice mechanisms. This article surveys the complex nature of their distress and psychosocial needs, as expressed by them during the consultations. It proposes that transitional justice mechanisms should be designed to protect their psychosocial well-being, address their complex psychosocial needs, and provide them with support and protection before, during and after their engagement in the mechanisms.

This article attempts to situate the Office on Missing Persons (OMP) in Sri Lanka in relation to varying approaches to mechanisms for searching for the missing. In particular, the article examines the possible tensions between a humanitarian and an accountability-based mandate and supports the position of the International Committee of the Red Cross that these two approaches can in fact be complementary in nature. It goes on to contend that the OMP's mandate is primarily humanitarian rather than exclusively humanitarian, and analyzes how this distinction may impact possible criminal prosecutions. It emphasizes the importance of preserving the humanitarian character of the OMP with the objective of ensuring that the victims’ rights are at the centre of transitional justice processes.

This article analyzes the evolution in international law of the obligation to search for and return the remains of forcibly disappeared and missing persons. Receiving the remains of forcibly disappeared and missing persons is one of the primary needs of their families, who bring the issue to international courts and non-judicial mechanisms. This obligation has been incrementally recognized and developed by different human rights courts, which have included the obligation to search for and return the remains of disappeared persons in their remedies. In parallel to the development of the obligation by international courts, the international community has begun to become more involved in assisting in return of the remains of forcibly disappeared and missing persons to their families.

The phenomenon of missing migrants, including victims of enforced disappearance, presents exceptional challenges due to its specific features and transnational scope. This article analyzes the case of missing and disappeared migrants in Mexico and illustrates the obstacles faced by their families, mostly residing in Central America, in their efforts to establish the fate and whereabouts of their loved ones and to obtain justice and redress. The article describes the process which led to the establishment of three mechanisms – a Forensic Commission, an Investigative Unit on Crimes against Migrants and an External Mechanism of Support for Search and Investigation – that aim at providing innovative responses and tackling the transnational dimension of the issue. The first significant achievements are presented, along with the remaining pitfalls.

The long-awaited verdict of the International Court of Justice in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case between Croatia and Serbia brought to an end the speculations as to whether or not a finding of genocide would be reached. After lengthy considerations on the genocidal actus reus, the Court dismissed all the claims of genocide, based on the lack of genocidal intent. If this conclusion is perfectly in line with established law and case law, its wider readability and acceptability outside of the legal microcosm is perhaps doubtful. How can a judgment which recognizes that acts falling within the list of proscribed genocidal acts have been committed but which then refutes their qualification as genocidal due to a lack of specific intent be explicable to those who lost their loved ones in what they feel was an enterprise of destruction?

More than a decade after the end of the conflict in Bosnia and Herzegovina, the issue of missing persons remains a major obstacle to reconciliation. With a focus on Bosnia and Herzegovina, this article looks at the phenomenon of missing persons and reviews the scope of the legal protection available to the victims and their family members, as well as some of the institutional efforts to shed light on their fate. The article describes the progressive development of the jurisprudence of the Human Rights Chamber for Bosnia and Herzegovina, a court modelled on the procedures of the European Court of Human Rights, which held that Bosnian authorities who are withholding from family members information about missing persons are violating their right not to be subjected to inhuman or degrading treatment and their right to respect for private and family life. It further illustrates the positive effects on politicians and lawmakers which can emanate from transitional justice.

On 10 May 2001 the European Court of Human Rights delivered the above Judgment which pronounces for the first time on the overall legal consequences of Turkey's invasion and continued military presence in Cyprus since 1974. The Judgment is important in many respects. It deals with a wide spectrum of systematic violations and decides certain significant legal questions in the sphere of international law and of human rights in particular pertaining to state responsibility, continuing violations, liability for missing persons, denial of access to homes and property, domestic remedies by de facto organs and administrative practice. The Judgment is also noteworthy for its various dissenting opinions.