[Documents/Docheader.htm]

Persons unaccounted for as a result of armed conflicts or internal violence in the Balkans

Doc. 10251
8 July 2004

Report
Committee on Migration, Refugees and Population
Rapporteur: Mr Mevlüt Çavusoglu, Turkey, European Democratic Group


Summary

A decade since the wars in former Yugoslavia began, 32,542 persons were reported missing to the International Committee of the Red Cross (ICRC). At the same time, many persons were found and exhumed from mass graves without being identified. In a number of other cases, the human remains have not been found, leaving the families with a testimony from a witness or a confirmation from local authorities.

The lack of progress in finding information about the fate of the missing is not only giving anguish to the families, who are still waiting for news, but also hampers the efforts at reconciliation and a return to peace and stability in this region.

The families of missing people face a whole range of problems arising from their vulnerable situation. Displaced from their homes and often deprived of the presence of the family’s income earner, they are confronted with significant financial hardship, administrative and legal barriers preventing them from accessing pensions or benefit from capital.

Therefore, the Parliamentary Assembly considers that the issue of missing persons should be depoliticized and considered as a humanitarian problem, to which all authorities should give priority without making differences based on the ethnic origin of the missing persons and their families.

It calls on the governments of member states to strengthen legal measures to deal with the problem of missing persons and, in particular, to support the initiative of the ICRC to create a legally binding international instrument to protect people from enforced disappearance.

The authorities of the countries concerned in the Balkans should improve their co-operation in exhumation, identification and return of remains of exhumed persons and should improve the exchange of information on missing persons by creating a consolidated list of missing persons according to unified criteria for the whole region.

I.          Draft resolution [Link to the adopted text]

1.         The unsolved problem of missing people resulting from the conflicts in the Balkans represents an enormous humanitarian problem directly related to other humanitarian and political concerns such as the return of refugees to their homes, the creation of mutual trust between community members of different nationalities and the building of a long-lasting peace.

2.         There have been 32,542 people reported missing to the ICRC as a result of armed conflicts in the Balkans among whom 22,322 are still unaccounted for, meaning the families have received no news about their fate.

3.         The Parliamentary Assembly recalls that the right to know the fate of missing relatives is a fundamental right of the families concerned and should be respected and enacted.

4.         The families of missing people face a whole range of problems arising from their vulnerable situation. Displaced from their homes and often deprived of the presence of the family’s main income earner, they are confronted with significant financial hardship, administrative and legal barriers preventing them from accessing pensions and capital.

5.         The Assembly regrets the strong politicization of the problem of missing persons and the lack of co-operation on the regional level between the authorities of different countries and entities in the Balkans.

6.         The Assembly notes with satisfaction the elaboration of a State Law on Missing Persons under the leadership of the Ministry of Human Rights and Refugees of Bosnia and Herzegovina in co-operation with the ICRC and the International Commission on Missing Persons (ICMP). It encourages the State Parliament of Bosnia and Herzegovina to adopt this law as soon as possible.

7.         The Assembly welcomes the efforts of the International Committee of the Red Cross (ICRC) in bringing the different authorities together to discuss the problem and to exchange information, in collecting the ante mortem data on missing persons and compiling the lists of missing persons, in providing legal assistance to families of missing persons and raising awareness among local authorities and the general public on the problems faced by these families, as well as by providing psycho-social support and support to family associations. It also welcomes the technical assistance provided to governments by the International Commission on Missing Persons (ICMP) in exhumations, examinations and identifications of missing persons.

8.         The ICMP campaign funded by the European Union to collect blood samples from family members with relatives missing from the conflicts in the former Yugoslavia who are now living in the countries of the European Union deserves the full support of the Assembly. The Assembly would welcome a similar collection of ante mortem data in Europe and North America that National Societies of Red Cross or Red Crescent are currently considering.

9.         The problem of missing persons in relation to the events in Kosovo is particularly complex. The Assembly is concerned by the lack of a clear strategy by the United Nations Interim Administration in Kosovo (UNMIK) in addressing this issue. As long as the international community is responsible for the administration of Kosovo and has retained competence for resolving the issue of missing persons, it should ensure that progress is made and that the necessary financial and human resources are available to speed up identification and return processes of human remains and to help the families of missing persons.

10.        The Assembly, therefore, urges the authorities of Bosnia and Herzegovina, Croatia and Serbia and Montenegro as well as the Kosovo Provisional administration to:

i.          depoliticize the issue of missing persons, considering it primarily as a humanitarian problem, to which all authorities should give priority without making differences based on the ethnic origin of the missing persons and their families;

ii.          step up inter-ethnic reconciliation processes;

iii.         include in their legislation the right of families to know what has happened to relatives unaccounted for in connection with armed conflict and internal violence, in accordance with relevant provisions of international humanitarian law;

iv.         strengthen legal measures to deal with the problem of missing persons by adopting a State Law on Missing Persons, which will introduce in their national legislations a legal status of “missing”, permitting the families of missing persons to benefit from financial and legal assistance;

v.          improve their co-operation for the tracing of missing persons and for the return of identified bodies;

vi.         accelerate the process of identification of exhumed bodies using all available means including: DNA matching, the matching of ante and post mortem data, and visual identification, as determined by forensic experts;

vii.        set up or/and further develop national capacities specialised in forensic and tracing expertise and to encourage them to assimilate the experience of the ICRC and ICMP;

viii.        improve the exchange of information on missing persons and to create a consolidated list of missing persons according to unified criteria for the whole region;

ix.         accord necessary administrative and legal protection to families of missing persons;

x.         recognize missing civilians as war victims and to include their families in the system of social benefits, as provided for families of missing servicemen;

xi.         adopt bilateral or multilateral agreements in order to put in place and/or facilitate existing procedures to obtain and/or recognise documents and legal decisions for families of the missing who have the status of refugees or internally displaced;

xii.        provide an adequate support to material, financial, psychological, legal and administrative needs of families of missing persons;

xiii.       address the needs of single heads of families, taking into consideration the specific needs faced by women in such situations;

xiv.       train all concerned authorities in the application of legal provisions and administrative procedures when addressing the rights of the families of the missing;

xv.        encourage family networking and associations, which can provide a forum for mutual support.

11.        The Assembly further:

i.          urges the authorities of different entities of Bosnia and Herzegovina to strengthen co-operation in the exhumation, identification and return of remains of missing persons;

ii.          urges the authorities of Serbia and Montenegro to speed up the identification process and the repatriation of human remains to Kosovo;

iii.         urges the UNMIK authorities in Kosovo to:

a.         develop a clear strategy regarding the missing persons problem combining judicial and non-judicial mechanisms of resolution;

b.         increase the capacity and the responsibility at local level for the missing persons issue, while ensuring a strong international oversight of this process with a view to guaranteeing its implementation in the most impartial and professional way;

iv.         encourages the United Nations Children's Fund (UNICEF) to develop a special assistance programme for parents of missing children.

12.        The Assembly also calls on the governments of member states to:

i.          assist the countries concerned to achieve the objectives, expressed in paragraphs 10 and 11;

ii.          support the initiative of the ICRC to create a legally binding international instrument to protect people from enforced disappearance;

iii.         raise public awareness on the problem of missing persons as a fundamental concern of international humanitarian law and human rights law and encourage the mass-media to attract the public attention to this problem and to the needs of families of missing persons;

iv.         provide financial and technical assistance to the countries and/or official bodies concerned for exhumation and identification processes;

v.          support the activities of the ICRC in according capacity building assistance to the authorities of the countries concerned in solving the problem of missing persons;

vi.         encourage the ICMP and the ICRC to transfer their expertise to national institutions and to train national specialists in forensic and tracing techniques;

vii.        facilitate the collection of ante mortem data of blood samples from families of missing persons living in Europe;

viii.        encourage the ICMP to improve their exchange of information with the Croatian authorities in order to speed up the process of identification of exhumed bodies;

ix.         provide financial assistance to the associations of the families of missing persons and non-governmental organisations tracing missing persons.

13.        The Assembly requests that the Council of Europe Commissioner for Human Rights continues to follow the issue of missing persons in the Balkans and, in particular, in Serbia and Montenegro and Kosovo with the aim of examining the human rights situation of families of missing persons who disappeared on the territory of Kosovo.

14.        The Assembly further calls on the Council of Europe Development Bank to positively consider the financing of possible project requests in Bosnia and Herzegovina, Croatia and Serbia and Montenegro in favour of the families of missing persons, in particular, related to providing housing and to the creation of a central data base on missing persons in the region.

II.         Draft recommendation [Link to the adopted text]

1.         The Parliamentary Assembly refers to its Resolution … (2004) on persons unaccounted for as a result of armed conflicts or internal violence in the Balkans.

2.         It considers the missing persons in the Balkans and, more specifically, the missing persons in Kosovo as a European problem with serious consequences for the maintenance of peace in the region and for the reconciliation between ethnic groups.

3.         It also recognises that, almost 5 years after the conflict, there is a lack of strategy by the United Nations Interim Administration in Kosovo (UNMIK) regarding the missing persons problem.

4.         Therefore, the Assembly recommends that the Committee of Ministers:

i.          organise a meeting of experts to prepare a strategy regarding the missing persons problem in the Balkans, and in particular in Kosovo, and a plan for its implementation including technical recommendations;

ii.          consider the elaboration of human rights awareness projects on the problem of the missing persons in close co-operation with the UNMIK Office on Missing Persons and Forensics (OMPF).

III.        Explanatory memorandum by Mr Çavusoglu

1.         Introduction

1.         In the framework of the preparation of this report the Rapporteur went on a fact-finding mission to Bosnia and Herzegovina, Serbia and Montenegro including Kosovo from 9 to 14 May 2004. He would like to express his gratitude to the International Committee of Red Cross for the assistance in organising this mission and in particular to Mr Bruno Zimmermann, Deputy Director of the Humanitarian Diplomacy Unit, who coordinated the visits of the Rapporteur to Sarajevo, Tuzla, Belgrade and Pristina.

2.         These visits could not have been arranged without the cooperation of ICRC field offices and he would like, therefore, to thank all people involved in the preparation of his mission and to welcome their important efforts in solving the problem of missing people in the Balkans.

3.         The Rapporteur would also like to express his gratitude to the representatives of local authorities and international organizations, whom he met during the mission, for the valuable information they provided in the course of discussions.

4.         The Rapporteur would finally like to thank Mr John Dalhuisen, Private Secretary of the Commissioner for Human Rights, who accompanied him on this fact-finding mission and greatly contributed to its success.

5.         All family members have the right to know the fate of relatives missing because of armed conflict or internal violence. This right is a fundamental concern of international humanitarian law and human rights law and must be respected.

6.         A decade since the wars in former Yugoslavia began, thousands of people who went missing during the hostilities in Croatia and Bosnia and Herzegovina are still unaccounted for. The conflict in Kosovo has added its own toll of people who have disappeared without trace. 32542 persons were reported as missing in connection with these conflicts to the International Committee of the Red Cross (ICRC). Many persons were found and exhumed from mass graves without being identified. In many other cases, the human remains have not been found, leaving the families with at most a testimony from a witness or a confirmation from local authorities.

7.         The lack of progress in finding information about the fate of the missing is not only giving anguish to the families, who are still waiting for news, but it is also creating great frustration for the authorities and the other players engaged in the search. The issue of missing persons is a constant reminder of the conflict, hampering efforts at reconciliation and a return to peace and stability. Future generations carry with them the resentment caused by the humiliation and injustice suffered by their relatives.

8.         The uncertainty of not knowing what has happened to a loved one is devastating, but when the person was head of the household, or the family's only bread-earning person, deeply troubling practical concerns about everyday survival also come into play. In this respect, women must gain acceptance in society of their new role, and their legal status must be clarified in order that they can claim certain rights (widow's pension and other rights relating to inheritance, property and remarriage).

9.         In tracing missing persons and supporting the families, the best results come from an integrated approach, which combines several strategies and responds to all the needs of the missing persons and their families. Tracing (inside prisons, hospitals, cemeteries or among displaced civilians), obtaining answers from the authorities and witnesses, support for exhumation and identification, and support for families are the four main strategies.

2.         Overview of the problem of missing persons

10.        The wars in Croatia in 1991 and 1992, in Bosnia and Herzegovina (BiH) from 1992 to 1995, the military operations in the three former UN sectors in Croatia in 1995, and the conflict in Kosovo in 1998-99 have left thousands of families throughout the region still searching for missing relatives.

11.        Missing persons should be understood in its broadest sense. Missing persons or persons unaccounted for as those whose families are without news of them and/or are reported missing on the basis of reliable information. People become unaccounted for due to a wide variety of circumstances, such as displacement, whether as an internally displaced person or a refugee, being killed in action during an armed conflict, or forcibly or involuntarily disappearing. The issue of missing persons is thus intrinsically linked with the respect of rights of the families concerned.

12.        In Bosnia and Herzegovina, by May 2004, the ICRC had collected tracing requests for a total of 21223 missing persons. 15658 of these persons are still unaccounted for, meaning the family has received no news at all about their fate; 925 of these persons were accounted for as dead, but the family is still waiting for the human remains; 4237 were accounted for as dead, and the family has received the human remains; 352 were located alive, and 50 cases were closed for administrative reasons. It should be noted that the ICRC is still receiving new tracing requests for persons unaccounted for in Bosnia and Herzegovina.

13.        In Croatia, the ICRC had collected tracing requests for a total of 5724 missing persons. 2649 of these persons are still unaccounted for, meaning the family has received no news at all about their fate (in 184 those cases the families received information about the death but not about the location of human remains); 3075 of theses cases have been closed, of which 1662 accounted for as dead, and 1397 were located alive and 16 closed for administrative reasons.

14.        In Serbia and Montenegro including Kosovo, by February 2004, the ICRC had collected tracing requests for a total of 5 826 missing persons. 3 272 of these persons are still missing, there are 2 747 cases without any information on the fate of the missing persons, and 547 cases for which the family knows that the persons is dead but they have no information on the human remains.

3.         Co-operation between parties

15.        The duty to respect humanitarian law and to avoid abuses lies with all actors in situation of armed violence. However, the State authorities and armed groups always bear primary responsibility for preventing people becoming unaccounted for and for ascertaining the fate of those who do. They are in charge of investigating cases of disappearances which occurred on territory and/or by forces under their control. They must determine the whereabouts or the fate of the person and inform and support the relatives. Where necessary, the authorities must ensure that criminal proceedings are initiated and reparation paid. The state authorities are thus also responsible for coordinating the work of all humanitarian organizations or other actors involved in the process of resolving cases of missing persons.

16.        The community of States, international, regional and local governmental organizations and the ICRC provide support and act as facilitators. The search starts with the opening of a tracing request by Red Cross and Red Crescent tracing services. It is a form containing personal information about the enquirer, personal information about the person to be traced and all details about the circumstances of loss of contact which are relevant to the search.

a.         Co-ordination mechanisms

17.        In Croatia, the authorities are represented in two commissions: the Department for Detained and Missing Persons of the Ministry of family, Veterans’ Affairs and International Solidarity of the Republic of Croatia, and the Commission for Humanitarian Affairs and Missing Persons of the Council of Ministries of Serbia and Montenegro. Respective governmental bodies of the Republic of Croatia and Serbia and Montenegro hold bilateral meetings with the participation of the ICRC and the ICMP observers, which are convened several times a year.

18.        In Bosnia and Herzegovina, the entities’ Governmental bodies carry out the exhumation work. There are two commissions, one for each of the two entities: the Federal Commission for the Tracing Missing (of the Federation of Bosnia and Herzegovina); and the Republika Srpska Office for Tracing the Missing and Detained Persons (of the Republika Srpska). In February 2003, a multilateral mechanism, called the Working Group on Persons Unaccounted for, was re-established to clarify the fate of the missing. Chaired by the ICRC, it includes all major stakeholders among which both entities of the State of Bosnia and Herzegovina, the Republic of Croatia, Serbia and Montenegro, the Office of the High Representative and the Ambassadors of the countries which witnessed the signing of the Dayton agreement.

19.        During the last session of the Working Group in October 2003 the regional dimension of the problem of the missing was raised and discussed among the representatives of Bosnia and Herzegovina, the Republic of Croatia and Serbia and Montenegro. The next meeting of this group will be held in November 2004 and a Sub-Committee on regional co-operation between Bosnian, Croatian and Serbia and Montenegro Commissions is to met for the first time in June 2004.

20.        In Serbia and Montenegro and Kosovo there are several structures which are dealing with missing persons following the Balkans conflicts.

21.        In Serbia and Montenegro, for what concerns the persons unaccounted for from the Kosovo conflict, the authorities are represented by the Coordination Centre for Kosovo and Metohija (CCKM) with its Bureau for Kidnapped and Missing Persons and the Bureau for Exhumation and Identification. These organs work together with their counterparts from Kosovo through a mechanism called the Kidnapped and Missing Persons Subcommittee, created in May 2002. The ICRC participates as observer, as well as the International Commission of Missing Persons (ICMP).

22.        A new State Commission on Missing Persons (Kosovo, Bosnia and Herzegovina and Croatia conflict) was established by decision of the Council of Ministers of Serbia and Montenegro on 12 November 2003. The Head of the Commission, Mr Gagic, is as well the Head of the Bureau for Kidnapped and Missing Persons within the CCKM (then representing the CCKM during Kidnapped and Missing Persons Subcommittee meetings). The Commission chairman is to report directly to the Federal President. This new Commission, having become fully operational, is integrating progressively the structures of the CCKM which dealt until now with the missing cases from Kosovo conflict.

23.        In Kosovo, the authorities are represented by the Office on Missing Persons and Forensics (OMPF) and the UNMIK Office for Missing Persons and Forensics). There is also an Inter-Ministerial coordinator for Returns in the Prime Minister’s Office, who is partly dealing with the problem of the missing persons, but has no financial means for this activity. The Governmental Commission for Missing Persons of the Provisional institutions of Self Government (PISG) in Kosovo is dealing only with missing persons unaccounted for before 1999. Having a budget of 2 mln Euros it is primary assisting families in the return of remains and in the organisation of the burial ceremonies.

b.         Co-operation in exhumations, identifications, management of human remains

24.        In Bosnia and Herzegovina, according to the Federal Commission from the immediate post-war period until the end of 2002, a total of 14598 bodies were exhumed on the territory of BiH and 8000 have been identified. These exhumations include 250 mass graves containing from 5 to 506 bodies (the larger one at Kamenica Zvornik), and several hundred graves containing from one to four bodies. Based on these figures, 6598 exhumed bodies are still unidentified and the Federal Commission is still looking for 15000 human remains which need to be exhumed. According to the Republika Srpska Office for Tracing the Missing and Detained Persons, during the same period, a total of 2400 bodies were exhumed and 1350 of these were identified.

25.        In the Republic of Croatia, first large-scale exhumations in former UN sectors started in 1995 (the first large-scale exhumation in the former UN sector East, Vukovar region started in 1998). First large-scale exhumations of Serb victims who got missing in 1995 started in 2001.

26.        In Serbia proper, approximately 830 bodies were exhumed from eight mass graves, out of which 221 were identified and handed-over to the families in Kosovo. The authorities exhumed as well 301 human remains of persons who died during the Croatian or Bosnian conflicts. There either floated down the Danube, Drina and Sava rivers into Serbia and Montenegro, or were evacuated from battle fields (Vukovar).108 of these human remains have been identified and returned to their families in Bosnia and Herzegovina (55) or Croatia (53).

27.               In Kosovo, since the creation of the OMPF in 2002, 643 human remains have been exhumed, out of which 442 in 2003. Out of the 486 bodies that were identified 451 have been handed over to the families.

28.        The exhumation and identification of human remains have taken on significant proportions in the Balkans regions. The first step is to find the exact location of the gravesite and carry out the exhumation. After the exhumation, the human remains are examined. All post-mortem data is carefully recorded: physical characteristics, dental records and traces of factures, personal belongings and clothing. Ante Mortem data (AMD) is gathered by means of questionnaires prepared by the forensic specialists of the country which are filled out by the families. Ante Mortem Data consists of information about clothing of the missing person, physical characteristics, medical and dental records, as well as personal effects carried by the person at the time of disappearance. These data are at the disposal of the forensic experts for the identification procedure.

29.        The post-mortem and ante-mortem data are then compared, according to a precise process and set of criteria. When ante mortem data matches post-mortem data, then the body can be identified and given to the family. In case when the remains can not be identified by traditional method, DNA profiling is used to provide confirmation. It involves comparing DNA extracted from the remains with DNA from close relatives of the missing person. However, using DNA analysis (nuclear and mitochondrial DNA) for identification is not without constraints. Not all human remains render enough genetic material for analysis) and the costs of these analysis are high. In Serbia and Montenegro, the procedure is reversed: a match of DNA comes first, and an additional constrains as the identifications that could in many cases be ensured by AMD/PMD matching are delayed until DNA results are provided.

30.        Unfortunately, due to a strong politicisation of this issue a co-operation between the countries of the region and their different entities and the exchange of information on missing persons and the location of mass graves is not satisfactory.

31.        In Croatia, with the political changes first in Zagreb and then in Belgrade, at the end of 2000, the authorities' approach to the issue evolved considerably on both sides in a positive manner and good results have been achieved.

32.        The missing file in Croatia has two aspects. First, the file of missing persons for whom the Government expects some sort of answers from other parties (e.g. from Serbia and Montenegro) whom they hold responsible for disappearance of these persons. This file also includes missing ethnic Serbs. Second aspect is the entire file of persons who got missing on the territory of Croatia or in connection with the conflicts in Croatia. The file includes all persons who got missing 1991-1995, persons of various ethnic origin and various nationalities, such as civilians of various ethnicities, missing Croatian soldiers, missing soldiers of former Yugoslav Army, or missing combatants of the so called Krajina, etc. The ICRC, National Societies and the Government exchange information on missing persons and the Government is treating the cases (collects information on the missing and circumstances of disappearance, collects ante mortem data and blood, organises exhumations and identifications, including DNA method). This means that all the cases regardless of where the tracing request is opened are treated and have the same possibility to be solved.

33.        However, for the successful identification process it is very important to develop well-regulated exchange of information between the authorities and organisations (ICMP) of other countries of the region, which possess DNA blood samples of the families of missing persons, living abroad.

34.        It should be noted that not all Serbs who went missing during the war on the territory of Croatia are included in the Croatian records of missing people. In addition, no comprehensive list of missing persons has yet been published for Croatian conflict.

35.        In Bosnia and Herzegovina, the authorities of different entities still have problems in sharing information about the fate of missing persons. A part of these problems derive from the decisions under the 1996 Dayton Peace Accords, when each of the two entities was obliged to be responsible for the tracing of missing on its territory.

36.        However, the Working Group On Persons Unaccounted For has discussed, among other issues, the idea to constitute a long-term mechanism to account for missing persons and address the needs of their relatives. Such a mechanism could be created on the basis of the Missing Persons Institute (MPI), which was originally conceived by ICMP. Since 2003, a working group has been preparing a State-level MPI, which will be co-founded by the government of Bosnia and Herzegovina, along with the ICMP.

37.        The MPI as a future mechanism for the solution of the problem of missing persons should take over and deal with the whole missing issue at a state level bringing together all activities related to the tracing process as well as all actors involved in this process in Bosnia and Herzegovina. The MPI should incorporate the recommendations of the International Conference on Missing and should have a strong capacity to extract information on the fate of the missing persons, have a national ownership during the whole process and be controlled by the national authorities.

38.        In the process of the establishing of the new Protocol on the MPI, it is very important that all entities of Bosnia and Herzegovina agree on harmonisation of the problem of missing on the State level and be ready to transfer competences within the missing issue to the State-level institution.

39.        In Kosovo, the political changes in Belgrade have enabled a dialogue to be initiated between the FRY/Serbian authorities and the administration of the United Nations Mission in Kosovo (UNMIK). However, their working modalities, with regard to identification of human remains and transfer of identified bodies, still need to be clarified as a lack of coordinated co-operation and transparent exchange of information between the CCKM, the OMPF/MPU/CCIU[1] and the ICMP have made work difficult in recent months.

40.        The exchange of information between Serbian authorities and the provisional authorities in Kosovo has been complicated by the involvement of various organisations and authorities in the identification and exhumation of the remains of the missing persons.

41.        To deal with this problem a number of structures were created with the aim to improve the exchange of information between the parties.

42.        In 1999, a Joint Implementation Commission (JIC) between the representatives of the Yugoslav Army and Serbian Police and their counterparts from KFOR and UNMIK Police was created after the signing of the Kumanovo Military Technical Agreement. It had three Sub-commissions: Military, Police/Security and Missing Persons, that were meeting on a weekly basis in Rudare. The Sub-commission on Missing Persons had a mandate to deal with the missing issues but not with the exhumations and identifications in Serbia proper.

43.        A Contact Group (CG)-a FRY/UNMIK forum of co-operation on missing persons and detainees - was set up in early summer 2001 following the revelations of the existence of mass graves in Serbia proper and the first exhumations. Later this structure was incorporated into the CCKM Sector for Justice, Security and Police, with its Department for Justice and Human Rights divided into five Bureaus (Missing and Kidnapped, Exhumation and Identification, Detained Persons and Legal Assistance, Housing/Judicial Administration and Investigation). The Bureau for Missing and Kidnapped Persons and Bureau for Exhumation and Identification are today directly involved in the work of the Subcommittee for Missing and Kidnapped Persons.

44.        In 2002, an initiative was launched by UNMIK to have the Subcommittee on Missing Person separated from the JIC with mandate to deal with all missing issues on both sides of the boundary.

45.        Kidnapped and Missing Persons Subcommittee has been established within the Joint Committee for Police Co-operation, a Joint Committee, created in May 2002 between the UNMIK and CCKM. The mandate of this Committee is to carry out intensive and continuous efforts to resolve the fate of all missing persons in Kosovo, respecting of all operational and humanitarian principles and the right to know the truth.

46.        There is also a Working Group on Missing created within the Belgrade-Vienna talks between Pristina and Belgrade and which met for the first time in March 2004. The mandate of this Working Group chaired by the ICRC is to trace persons who are unaccounted for in connection with events in Kosovo and to inform their families accordingly. The Working Group may also address the legal and administrative needs of the families of persons who are unaccounted for. The success of any tracing effort made within the framework of the Working Group depends on the co-operation of the parties. It is not a part of the Working Group’s mandate to identify the parties or individuals responsible for a capture, death or disappearance or to gather evidence for such identification. The question of any judicial process is to be dealt with entirely separately from the Working Group. This Working Group is to work in complementarily with the Subcommittee on Kidnapped and Missing Persons.

47.        Unfortunately, the existence of numerous, sometimes, parallel structures does not help in achieving progress in solving the problem of the missing persons.

48.        In all countries concerned public campaigns are conducted to raise public awareness about missing persons and make sure that everyone knows they can contribute to addressing the problems. For instance, the ICRC has initiated several campaigns to call for testimonies by witnesses.

c.         Problems that remain

49.        In practice, there are serious constraints which impede the exchange of information. Sometimes, it is difficult for the authorities to work together and there is a lack of information on the location of mass or individual graves. They may face pressure from their own constituencies, which do not yet accept working with the "other side". Another constraint arises when the Commissions entrusted with providing answers have little power to do so.

50.        A further constraint is the fear that revealing information about missing persons will lead to the incrimination of those responsible for their death and their extradition to the ICTY in the Hague and, in the future, an obligation on states to initiate war crimes proceedings in domestic courts.

51.        Another major problem stems from the state of preservation of the remains years after the end of the conflict. In the case of large mass graves such as those surrounding Srebrenica, body parts became mixed up. Sometimes, graves were relocated which makes identification even more difficult. In some cases, the human remains have been destroyed.

52.        Due to a huge migration of populations during and after the conflicts in the Balkans the process of the identification of the remains of missing persons became even more complicated. Many families of missing persons have resettled abroad in Europe, America and even Australia. It is very difficult to obtain the AMD and DNA samples from these families. Therefore, the initiatives similar to the ICMP campaign funded by the European Union to collect blood samples from the families of missing persons who now are living on the territory of the European Union should be actively encouraged at the national and international levels.

53.        It is very important to create, according to unified criteria the consolidated list of persons unaccounted for as a result of armed conflicts or internal violence in the Balkans. The creation of such a list will contribute to the depoliticisation of the problem of the missing persons in the region and will speed up the process of the identification and return of bodies to the families.

54.        The process of DNA identification seems to slow down due to the lack of exchange of information between different counties and organisations, which posses DNA from blood and bones samples.

55.        The complex situation regarding the problem of missing persons in relation with the events in Kosovo demands strong efforts on behalf of all organisations and authorities involved at all stages of exhumation and identification of bodies to compile a consolidated list of missing persons in relation with the events in Kosovo. The lack of clear strategy in addressing this issue by the United Nations Interim Administration in Kosovo (UNMIK) and the problem of internal communication and co-operation between OPMF, MPU and CCIU impacts heavily on the confidence of all communities in the international administration. The present structure within UNMIK that organises the distribution of responsibilities between OMPF and MPU is leading to different interpretations about the responsibilities and mandates of these units.

56.        To facilitate the task of the UNMIK, the international community should increase both human and material resources of the OMPF and Missing Persons Unit of the UNMIK by ensuring continuity of forensic and police specialists and increasing the number of experts for the operational work.

4.         Role and contribution of intergovernmental and non-governmental actors involved

a.         International Committee of the Red Cross

57.        The ICRC's role is to lend its services and expertise to bring the different authorities together in the search for information and answers. The ICRC seeks to back this process in many ways, ranging from the drawing up of lists of missing persons to the provision of logistical support for the exhumation and identification of human remains. It includes also helping addressing the economic, legal and psychological needs of their families.

58.        The ICRC systematically provides to the relevant authorities lists of all the tracing requests which still have to be resolved, a summary of each tracing case, updates on cases solved through exhumation or eyewitness testimony.

b.         United Nations

59.        Since 1980, the UN Working Group on Enforced or Involuntary Disappearances has tried to assist families in clarifying the whereabouts of thousands of persons by urging Governments to conduct appropriate investigations. A Working Group on a draft legally binding instrument for the protection of all persons against disappearances has also been set up recently.

c.         International Commission on Missing Persons (ICMP)

60.        Created in 1996, following the G-7 Summit in Lyon the ICMP has been working to address the issue of missing persons as a result of the different conflicts in the Balkans. The ICMP provided technical assistance to these countries in exhumation, examination and identification of persons missing. This organisation has pioneered the use of DNA technology for the purposes of identification of human remains.

61.        The ICMP has signed bi-lateral agreements with the Government of FRY, the Serbian Co-ordination Centre for Kosovo and Metohia, as well as with the UNMIK Authorities in Kosovo, to ensure progress on cross border/entity issues.

d.         Family Associations

62.        Family associations and networks play an important role in the Balkans, and provide collective support to family members, promote public recognition of the problem, and should be encouraged in their development. The contacts and exchange of information between the family associations of different countries and entities could significantly influence the reconciliation process in the Balkans region.

5.         Legal issues

a.         Legal status of missing persons and their families

63.        Humanitarian law must be the unconditional guarantee for all persons affected by war against arbitrary harm and must provide a stronghold for the preservation of justice and human dignity in times of conflicts.

64.        The right of families to know the fate of their missing relatives is defined in the Protocol I (1977) Additional to the Geneva Conventions (Article 32). All parties are obliged to respect the provisions set forth in Article 33 of this Protocol I. These obligations include "the search for the persons who have been reported missing by an adverse Party, as soon as circumstances permit, and at the latest from the end of active hostilities", "to facilitate the gathering of information necessary for such a research", "to notify every arrest, transfer, release or death in captivity to the Central tracing Agency of the ICRC", "to carry out a search for persons having died in other circumstances as a result of hostilities". States have also a duty to investigate suspected cases of extra-legal, arbitrary and summary execution or of enforced disappearance.

65.        A number of other provisions[2] of the four Geneva Conventions and their Additional Protocols relate to the issue of missing persons and specify the responsibilities of the parties to the conflict.

66.        The European Convention on Human Rights imposes numerous obligations on its signatory States regarding disappearance. There obligations concern both missing persons themselves and their relatives. The Strasbourg Court’s case law on this subject, although relatively recent, has begun to specify the content and scope of these obligations. For example, insufficient investigation into the fate of a missing persons or the failure by the authorities to hand over the information in their possession may be considered as a form of torture of the missing person’s families and friends (Article.3). Likewise, any detention which is not officially recognised by the authorities and which is followed by the person’s disappearance constitutes a violation of the right to liberty and security (Art. 5) and also of the right to life (Art.2). Finally, observance of the right to an effective remedy (Art. 13) requires the authorities not only to pay damages but also to conduct thorough and effective investigation with a view to identifying and punishing those responsible, if a relative claims, on reasonable grounds, that a member of his or her family disappeared when in detention.[3]

67.        The international law also specifies the rules regarding the respect for the dead and their families. Each party to an armed conflict must take all possible measures to search for and collect the dead without distinction; the dead must be disposed of in a respectful manner and their graves respected; and the parties must take all possible measures to provide information to the appropriate authorities or to the family on the identity, location and cause of the death of deceased persons.

68.        Unfortunately, very often, the authorities do not make the necessary enquiries and do not provide information on missing people. Instead of being addressed as a humanitarian problem requiring urgent solutions, the issue of missing persons becomes part of the struggle for control and power, a matter for political bargaining. Furthermore, in the cases of people who disappeared following violations of international humanitarian law, human rights law and domestic law, the perpetrators may conceal information to avoid prosecution.

69.        Moreover, little or nothing is done to search for, collect and deal with the remains of those killed in action or other circumstances. Human remains are often buried out without being identified; their graves are not even marked. Thus, valuable information on the dead is lost or unavailable, and the families remain without confirmation that their relatives have died.

b.         Law on Missing persons

70.        Considerable progress regarding the protection of rights of the families of missing persons has been achieved by the authorities of Bosnia and Herzegovina through a new legislative initiative. Under the coordination of the Ministry of Human Rights and Refugees an expert working group, which included governmental representatives from the Federation, the Republika Srpska and Brcko District along with the Federal Commission as well as the RS Office for Tracing and the ICRC and the ICMP, has drafted the State Law on Missing Persons. The representatives of the family associations have actively participated in the process of drafting.

71.        The Law on missing persons will cover the following aspects: definition of missing persons, rights of relatives to know the fate of the missing person, the status of a missing person, the rights of relatives of the missing persons, the establishment of a Central data base for missing persons, the supervision by authorities and the role of a long-term mechanism to carry out work to account for missing persons (a Missing Persons Institute) and penal provisions for refusing co-operation.

72.        After being approved by the Council of Ministers of Bosnia and Herzegovina on 10 June 2004, the draft Law has been submitted for adoption procedure to the Parliament. The adoption of this Law by the State Parliament of Bosnia and Herzegovina in its original draft will be a very significant step in the legal definition of the status of missing persons and their families and will be a positive example for other countries concerned to introduce similar legal norms, which will protect the rights of the missing persons’ families.

c.         Public assistance and reparation

73.        In most situations, there is no official acknowledgement of the status of "missing person" and thus the families are not entitled to support. The undefined legal status of a missing person's spouse or descendant may have consequences on property rights, the guardianship of children, inheritance and the possibility of remarriage.

74.        In the absence of a clear legal framework dealing with the problem of missing persons at the national and international levels, the families are left to struggle through a maze of complicated laws and procedures and are obliged to declare their missing relatives dead in order to exercise many of their rights, such as sale of property, obtaining family pensions, inheritance and remarriage. But for most of the families, making a declaration of death, which would be in many cases the only existing way to solve issues, is unacceptable. As long as death has not been proved, the families are not ready to start such a procedure, even though this means that they will forfeit certain rights and benefits.

75.        Families of missing persons attach great importance to the need for information as well as the need for accountability. Mechanisms established to meet these needs can be judicial and/or non-judicial, the aim being to advance the cause of justice for the victims and their families, who want their loss to be taken into account. Thirdly, the families need and give priority to acknowledgment. In the cases of people who are missing as a result of criminal action or inaction by the State authorities or armed groups, the families often want acknowledgment of the missing person's dignity and intrinsic value, of the crime, of the State authorities' or armed groups' responsibility and of the steps that need to be taken to address the crime.

76.        Finally, families awaiting clarification of what happened to their loved ones often have material, financial, psychological, legal and administrative needs. In most situations, ensuring that families receive adequate support requires complementary measures-including judicial, humanitarian and social mechanisms that work in conjunction with one another.

77.        In addition to a tragedy of having missing family members, many families, especially those residing in Serbia and Montenegro, are facing very complicated legal problems related to their IDP and refugees status as the enjoyment of there rights is often conditioned by the legislation and administrative procedures of their countries or regions of origin.

78.        It has to be noted that the vast majority of those who remain unaccounted for in connection with armed conflict or internal violence are men, which leave many women behind to bear the emotional and economic burden. For these women, cessation of hostilities does not bring peace of mind: the anguish of not knowing the fate of a loved one and not being able to complete the grieving process is too often compounded by the economic hardship occasioned by the loss of a bread-earner. Some of these women may, in addition, lack a clear legal status and thus be denied pensions or similar entitlements.[4]

6.         Measures to be taken

79.        The complexity of the problem of missing people in the Balkans and the consequences of this problem for the families of missing persons requires strong measures to be taken in order to provide those families with protection and assistance accorded by international humanitarian law, human rights law, refugee law as well as national legislation.

80.        The issue of missing persons should be depoliticized and should be considered as a humanitarian problem, to which all authorities should give priority without making differences based on the ethnic origin of the missing persons and their families.

81.        In this respect, the governments of the Council of Europe member states should strengthen legal measures to deal with the problem of missing persons and, in particular, support the initiative of the ICRC to create a legally binding international instrument to protect people from enforced disappearance. This instrument should set out preventive measures such as official registers detailing the arrest, transfer and release of persons held in detention.

82.        All states should include in their national legislation the right of families to know what has happened to relatives unaccounted for in connection with armed conflict and internal violence. Domestic legislation must include provisions on the legal situation of missing persons and the legal consequences their relatives.

83.        It is very important to raise awareness of the problem of missing persons as a fundamental concern of international humanitarian law and human rights law among government authorities, the United Nations and non-governmental organizations and also among other leaders and opinion-makers. The mass-media can play an essential role in order to attract the public attention to this problem and to the needs of families of missing persons.

84.        The international community should support the activities of the ICRC in according humanitarian assistance to the authorities of the countries concerned and in solving the problem of missing persons. It should also encourage the international humanitarian organisations to transfer their expertise to national institutions and to train national specialists in forensic and tracing techniques.

85.        The authorities of Bosnia and Herzegovina, Croatia and Serbia and Montenegro as well as Kosovo Provisional administration should improve their cooperation for the tracing of missing persons and for the return of identified bodies.

86.        The authorities should provide an adequate support to material, financial, psychological, legal and administrative needs of families of missing persons. Particular attention must be paid to single heads of families and children whose parents are both missing.

87.        Bilateral or multilateral agreements should be adopted between the authorities of Bosnia and Herzegovina, Croatia and Serbia and Montenegro as well as Kosovo Provisional administration in order to put in place and/or facilitate existing procedures to obtain and/or recognise documents and legal decisions for families of the missing who have the status of refugees or internally displaced.

7.         Conclusion

88.        Issues such as the clarification of the fate of the missing should always be at the centre of any peace negotiations ending conflicts. The issue of missing persons is painful and difficult to solve. It is intricately linked to the political and security environment, and very dependent on the good will of the authorities to tackle the problem. The history of this issue in the Balkans reveals the need to actively address the problem of the missing persons from the very outset, upon the cessation of hostilities. Procrastination undermined the perspectives of reconciliation and only makes the definite resolution of outstanding cases more complicated.

89.        Given the complexity of the task, and despite the many useful initiatives and projects carried out to date, clarifying the fate of all persons who went missing during the conflicts in the Balkans will require time. Policy and projects developed to address the issue must be sustainable, if they are to address the long-term nature of the problem. They must be firmly rooted with the authorities, as it is ultimately their responsibility to solve the issue of missing persons.

90.        Before, during and after an armed conflict or a situation of internal violence, the government authorities, both civilian and military, and the leaders of any opposition groups must take resolute action to prevent people from becoming missing and provide information on people whose families are without news of them.

APPENDIX

Fact-finding mission of Mr Cavusoglu

on the subject of missing persons in the Balkans (9-14.05.04)

PROGRAMME

Day 1         Sunday 09 May 2004         

–                Arrival Sarajevo from Paris / Frankfurt / Ankara / Geneva

–                Transfer to Hotel / Guest house

19.30          Dinner offered by the PACE delegation (restaurant “Dom pisaca”)

Day 2         Monday 10 May 2004 - Sarajevo

08.15          Pick up from hotel

08.30          Welcoming briefing

08.50          Protection/ Cooperation at ICRC Delegation (Topics: WG (Working group for persons unaccounted for: the mechanism developed by the ICRC for parties to fulfil their obligations under the Dayton Agreement Annex 7 Art.5 to clarify the fate of the missing); MPI (Missing Persons Institute), Law on Missing (recently submitted to the Council of ministers); AMD (Ante Mortem Data) collection, family associations of the missing, psycho-social support to families of the missing as well as Red Cross volunteers/staff working with them)

11.00          Meeting with Deputy Minister of Human Rights and refugees Ivaca Marinovic

11.40          Meeting with Mr Amor Masovic, president, Federal Commission on Tracing the Missing, Bosnia and Herzegovina

12.30          Lunch

14.00          Meeting with Mr Alexander Radeta, Head Tracing of Detained and Missing Persons, Republika Serpska

14.45          visit AMD collection team

16.15          Transfer to Tuzla

19.00          Arrival to Tuzla

–                Dinner

Day 3         Tuesday 11 May 2004 - Tuzla

08.00          Briefing on AMDB at Tuzla's ICRC Sub-Delegations

09.00          Visit to ICMP (International Commission on Missing persons) / ICC (Identification facility) / PIP(Storage for human remains)

12.30          Lunch hosted by ICMP with ICRC team

14.00          Transfer to Belgrade (stopover at mass grave near Zvornik)

–                Arrival Belgrade

–                Transfer to Hotel Intercontinental

19.00          Dinner hosted by ICRC Head of Delegation (Hotel Intercontinental)

Day 4         Wednesday 12 May 2004 - Belgrade

08.30          Briefing with the ICRC Protection Coordinator

10.00          Meeting with Mr Simo Spasic, Family Association of the Kidnapped and Killed in Kosovo and Metohia, 1998, 1999 up to date

12.00          Meeting with Mr Gvozden Gagic, President of the State Commission of the Missing (Bosnia and Herzegovina, Croatia and Kosovo missing)

14.00          Meeting with Mr Savo Strbac, Veritas Centre for Document Collection (NGO dealing with persons missing in the territory of Croatia)

15.00          Meeting with Mrs Verica Tomanovic, president of the Family Association of the Missing in Kosovo

16.30          Meeting with Mr Gradimir Nalic, Former Adviser of the Prime Minister of the Republic of Serbia and a member of the Serbia and Montenegro Delegation to the Working Group on the Missing in Kosovo

Day 5         Thursday 13 May 2004 - Pristina (hotel "Illiria")

08.00          Transfer to Pristina

12.00          Arrival in Pristina

12.30          Lunch with representatives of Kosovo Serb Family Associations (Gracanica)

14.30          Meeting with the representatives of the Office for Missing Persons and Forensics (OMPF) and Missing Persons Unit (MPU)

15.30          Meeting with Kosovo-Albanian family associations (Pristina)

17.00          Briefing by the ICRC Mission    

19.30          Dinner with ICRC and a representative of the NGO Kosovo Association Network KAN (Kosova Action Network)

Day 6         Friday 14 May 2004           

09.00          Meeting with Mr. Milan Todorovic, Inter-Ministerial coordinator for Returns in the PM’s Office, UNMIK Gvt. Building, 2nd floor, room E211

10.00          Meeting with Mr. Ragip Zekolli, President of the Commission for Missing Persons, Good Governance

11.00          Meeting with Mr. Jean-Christian CADY, Deputy Special Representative (Police and Justice)

–                Departure to Paris / Frankfurt / Ankara / Geneva


Reporting Committee: Committee on Migration, Refugees and Population.

Reference to committee: Doc. 9589, Reference No. 2770 of 18 November 2002.

Draft resolution and draft recommendation unanimously adopted by the Committee on 22 June 2004.

Members of the Committee: Wilkinson (Chairperson), de Zulueta (1st Vice-Chairperson), Sĝndergaard (2nd Vice-Chairperson), Branger (3rd Vice-Chairperson), Agramunt Font de Mora, Akgün (alternate: Streb-Hesse), Alibeyli (alternate: B. Aliyev), Bernik, Bilalov, Bilozir, Bousakla, Brajovic (alternate: Kalanovic), Braun, Brinkel (alternate: van Thijn), Brunhart, Cabrnoch, Çavusoglu, Christodoulides, Cilevics, Cliveti, Cortajarena Iturrioz, Danieli, Debarge (alternate: Salles), Debono Grech, Dedja, Dendias, Dmitrijevas, Einarsson, Err, Fedorov, Filipiová, Freiherr von und zu Guttenberg, Grissemann, Grzesik, Grzyb, Gülçiçek, Hagberg, Hancock, Higgins, Hoffmann, Ilascu, Iwinski, Lord Judd (alternate: Foulkes), Karpov, Katseli, Kirilov, Kósá-Kovács, Kvakkestad, Lambert, Le Guen, Loutfi, Masi, Naro, Nasufi, Nessa, Olin, G. Popa, V. Popa, Puche y Rodriguez-Acosta, Pupovac, Raguž, Rakhansky, Reymann, Ružic, Saks, Shakhtakhtinskaya, Skarphédinsson, Stamm, Stoisits, Stübgen, Szabó (alternate: Platvoet), Tekelioglu, Tevdoradze, Tkác, Torosyan (alternate: Margaryan), Vera Jardim, Vermot-Mangold (alternate: Zapfl-Helbling), Vieira, Wray (alternate: Etherington), Zavgayev (alternate: Provkin), Zhirinovsky (alternate: Oskina).

N.B. The names of those members present at the meeting are printed in bold.

Secretariat of the committee: Mr Lervik, Mrs Nachilo, Mrs Kostenko, Mrs Sirtori-Milner.


[1] CCIU: Central Criminal Investigation Unit

[2] Articles 14, 15, 16 of GC I; Articles 122, 123 of GC III, Articles 136 and 140 GC IV and Articles 32-34 of Additional Protocol I of 1997; Articles 140 GC IV.

[3] Missing Persons and European Convention of Human Rights, by M. Alvaro Gil-Robles, Commissioner for Human Rights of the Council of Europe, Geneva, February 19, 2003.

[4] 60th Annual Session of the UN Commission on Human Rights- Statement by the President of the ICRC, Geneva, 17 March 2004.