GENERAL
E/CN.4/1994/26/Add.1
15 December 1993
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fiftieth session
Item 10 (c) of the provisional agenda
QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO ANY
FORM OF DETENTION OR IMPRISONMENT
QUESTION OF ENFORCED OR INVOLUNTARY DISAPPEARANCES
Report on the visit to former Yugoslavia by a member of the
Working Group on Enforced or Involuntary Disappearances at the
request of the Special Rapporteur on the situation of human
rights in the former Yugoslavia(4-13 August 1993)
CONTENTS
Paragraphs
Introduction
I. AGENDA OF THE VISIT
II.
INSTITUTIONAL ARRANGEMENTS RELEVANT TO MISSING PERSONS
III. FRAMEWORK FOR ACTION
IV. IMPLEMENTING MECHANISM
V. CONCLUDING OBSERVATIONS
VI. SUMMARY OF PROPOSAL
Introduction
- In his first report to the Commission on Human Rights at
its first Special Session, the Special Rapporteur on the
situation of human rights in the territory of the former
Yugoslavia posited that there was an urgent need to
establish an investigative commission, under the auspices
and in cooperation with the competent United Nations
bodies, vested with the task of determining the fate of
the thousands of persons who had disappeared after the
seizure of Vukovar, as well as of other persons who had
disappeared during the conflicts in the former Yugoslavia
(E/CN.4/1992/S-1/9, para. 67). He added that the Working
Group on Enforced or Involuntary Disappearances of the
Commission on Human Rights might be called upon to advise
and assist in that regard.
- At its forty-ninth session, on 23 February 1993, the
Commission on Human Rights adopted resolution 1993/7,
entitled "Situation of human rights in the territory
of former Yugoslavia", in paragraph 33 of which, the
Commission requested the Special Rapporteur, in
consultation with the Working Group on Enforced or
Involuntary Disappearances and the International
Committee of the Red Cross, to develop proposals for a
mechanism to address the subject of disappearances in the
former Yugoslavia.
- Accordingly, the Special Rapporteur held consultations
with the Chairman of the Working Group and it was decided
to request Mr. Toine van Dongen, a member of the Working
Group, to conduct a mission to the Republic of Croatia
and to the Federal Republic of Yugoslavia. Mr. van Dongen
was accompanied by a field officer of the Centre for
Human Rights, based in Zagreb.
- The purpose of the mission was to consult with relevant
governmental officials, including military officers who
were involved in areas of combat at times when
disappearances might have taken place, representatives of
intergovernmental and non-governmental organizations, and
families of those who disappeared, in order to determine
which mechanisms might usefully be proposed with a view
to elucidating the fate and whereabouts of the missing
persons.
- The present report has been discussed with
representatives of the International Committee of the Red
Cross at Geneva, who expressed their satisfaction.
I. AGENDA OF THE VISIT
- The mission took place in the former Yugoslavia from 4 to
13 August 1993. The members of the mission visited Zagreb
and Belgrade, and also two United Nations Protected
Areas: Sector West and Sector East, particularly Vukovar.
Given the conditions prevailing in the area, it proved
impossible to organize a visit to other parts of the
former Yugoslavia, notably Bosnia and Herzegovina, apart
from a visit to Sarajevo by the Special Rapporteur on 11
and 12 August, during which he discussed the question of
missing persons with various interlocutors on his own
account.
- The members of the mission were received in Zagreb by the
Minister for Foreign Affairs and by the Minister of
Health of the Republic of Croatia, by the Head of the
Office for the Victims of War, the President of the
Commission for Imprisoned and Missing Persons, the former
Head of the Medical Headquarters of the Croatian Army and
other members of the Commission for Imprisoned and
Missing Persons. They also met the Secretary-General of
the Croatian Red Cross, a member of the Department of
Information and Research of the Ministry of Health, the
Deputy Bishop of Zagreb and representatives of the
International Committee of the Red Cross (ICRC), the
Office of the United Nations High Commissioner for
Refugees (UNHCR), the United Nations Protection Force
(UNPROFOR) and the European Communities Monitoring
Mission (ECMM). In addition, they met representatives of
three non-governmental organizations: Majke Vukovarske
(Mothers from Vukovar), Bedem Ijubavi (Mothers for Peace)
and the Christian Information Service. Lastly, they
interviewed a former prisoner of war.
- In Belgrade, the members of the mission were received by
the Minister for Foreign Affairs and by the Minister of
Human Rights and Minorities of the Federal Republic of
Yugoslavia. They were also received by representatives of
the Ministries of Defense, Foreign Affairs and Justice
and by the Head of the Yugoslav State Commission of War
Crimes and Genocide. They also met the Secretary-General
and other officials of the Yugoslav Red Cross, and
representatives of ICRC, UNHCR and UNPROFOR. In addition,
they met representatives of three non-governmental
organizations: the Humanitarian Law Fund, the Anti-War
Centre and the Serbian Council Information Centre.
Unfortunately, meetings with church representatives could
not be arranged in time. During their trips to Sector
West and Sector East, the mission was briefed by
UNPROFOR.
- Valuable cooperation was received from the authorities in
Zagreb and in Belgrade, as well as from UNPROFOR.
Requests for meetings with officials were readily
granted; the logistical arrangements for the travel of
the mission were efficiently carried out by UNPROFOR.
II.
INSTITUTIONAL ARRANGEMENTS RELEVANT TO MISSING PERSONS
A. Relevant institutions in the Republic of Croatia
1. Office for Victims of War and Commission for Imprisoned
and Missing Persons
- During the visit of the mission to Zagreb, a meeting was
held with the Head of the Office for Victims of War and
with the President of the Commission for Imprisoned and
Missing Persons. The mission received oral and written
information on the mandate of the two institutions. The
Office for Victims of War was established on 13 May 1993
by the Government of Croatia to conduct, direct and
harmonize activities in relation to the protection of the
victims of war and their families. The Office and its
Chairman are responsible to the Government.
The mission was unable to evaluate governmental and
non-governmental institutions and organizations relevant
to disappearances established in other parts of the
former Yugoslavia, outside the Republic of Croatia and
the Federal Republic of Yugoslavia.
- The Head of the Office is also a member of the Commission
for Imprisoned and Missing Persons. The Commission was
established on 13 May 1993 and has nine other members,
for the most part representatives of various Ministries.
Subcommissions for each United Nations Protected Area
(UNPA) have competence to negotiate at a local level on
questions concerning the exchange of prisoners and
information. The Commission's mandate is to gather
information on detained and missing persons from the
territory of Croatia during the war. It also monitors the
implementation of the Geneva Convention relative to the
Treatment of Prisoners of War. The Commission is expected
to report to the Government at least twice a year. It has
collaborated closely with ICRC and the Croatian Red Cross
in order to establish a strategy for tracing missing
people and to investigate difficult cases, such as in
Vukovar. However, it does not trace individuals, but
transmits individual requests to the Yugoslav side.
2. Department of Information and Research of the Ministry
of Health
- The Department of Information and Research of the
Ministry of Health gathers medical documentation from all
hospitals in Croatia about all civilian casualties (dead
or wounded, civilian or military). It collects the
testimony of witnesses and other information on summary
executions and mass graves and transmits it to
international governmental or non-governmental
organizations. Thus, the Department drew up a list of
about 7,000 persons reported missing during the war. In
addition, from the testimonies received, it establishes a
coherent account of particular events, double-checking
the data provided. Moreover, the Department has assembled
information about Vukovar from witnesses and relatives of
missing persons and has sent it on to international
institutions such as ICRC, the United Nations Centre for
Human Rights and the Commission of Experts on the former
Yugoslavia established by the Security Council. The
Department is in permanent contact with the Croatian Red
Cross and the Croatian authorities in order to keep its
list of missing persons up to date.
B. Relevant institutions in the Federal Republic of
Yugoslavia
1. State Commission for Prisoners of War and Disappeared
Persons
- The State Commission for Prisoners of War and
Disappeared Persons was established by the Government of
Yugoslavia to establish contacts with the Croatian
authorities with a view to receiving information on
prisoners of war or missing persons belonging to the
former Yugoslav People's Army (JNA). Thus, the Commission
is only competent in the case of members of JNA who were
captured or who were reported missing prior to 25 May
1992, at which date JNA was replaced by the Army of
Yugoslavia. The information is gathered on the basis of
requests made by relatives of missing persons. The
Commission is not mandated to conduct negotiations with
the Croatian authorities.
2. Yugoslav State Commission for War Crimes and Genocide
- The Yugoslav State Commission for War Crimes and Genocide
was established by the Federal Parliament in March 1992.
It is composed of 40 members and reports to the
Parliament. Its objectives are to gather information on
war crimes and genocide committed against the Yugoslav
people. The Commission also collects information on
missing persons.
C. Red Cross Societies
- The Yugoslav Red Cross Society was created in 1876 and is
at present composed of the Serbian and Montenegran Red
Cross Societies. Since Croatia became independent, the
Croatian Red Cross Society was recognized as a national
society on 26 August 1993 and is to join the
International Federation of Red Cross and Red Crescent
Societies. The Yugoslav Red Cross does not cover the
United Nations Protected Areas. Local Red Cross societies
exist in Bosnia and Herzegovina.
- The Croatian Red Cross and the Yugoslav Red Cross
undertake a number of activities relevant to missing
persons. For example, they transmit family messages and
are present when exchanges of prisoners of war take
place, as well as at the delivery of mortal remains. Both
Red Cross Societies operate a tracing service, pursuant
to the Geneva Conventions, and both, in accordance with
established Red Cross procedures, draw up lists of
missing persons based on information received from the
relatives or friends of missing persons. One major
challenge is finding a missing person when the only
available information is the name.
- Communication between the two Societies is said to be
strained and the exchange of information slow. Both
cooperate with ICRC.
D. Joint Commission to Trace Missing Persons and Mortal
Remains
- Consultations between representatives of ICRC and the
Yugoslav and Croatian authorities resulted in the
establishment, on 16 December 1991, of the Joint
Commission to Trace Missing Persons and Mortal Remains.
The pertinent agreement, signed in Pecs, Hungary,
describes the mandate of the Commission as: "i. the
coordination of the activities of the tracing services;
ii. the intervention in some specific requests and more
complex cases; and iii. the discussion of every unclosed
request." The mandate of the Joint Commission covers
the armed conflict from June 1991 to spring 1992. It
concerns missing civilian and military persons.
- The members of the Joint Commission are representatives
of the Federal Executive Council of the Socialist
Federative Republic of Yugoslavia (now the Federal
Republic of Yugoslavia), the Republic of Croatia, the
Republic of Serbia and the Yugoslav People's Army (now
the Army of Yugoslavia). The Croatian Red Cross, the
Yugoslav Red Cross and the Serbian Red Cross were
designated as permanent advisers. ICRC acts as a neutral
intermediary, putting "at the Joint commission's
disposal a delegation which will chair the meetings of
the Joint Commission".
- The Commission has drawn up lists of missing persons.
Lack of consultation with the relatives of the missing
persons has made it difficult to keep the lists up to
date. The single most important event that took place
under the auspices of the Commission was an exchange of
1,200 prisoners of war on 14 August 1992. Soon
afterwards, activities came to a virtual standstill, and
the Commission has not met since that time. The mission
was informed that efforts were under way to arrange a new
meeting, but a lack of political will had so far
precluded this.
E. International Committee of the Red Cross
- In the former Yugoslavia, parallel to relief and medical
assistance, ICRC has concentrated on the exchange of
family news, visits to prisoners of war and participation
in prisoners release. ICRC has contacts with the
relatives of missing persons in order to receive and
transmit information. It is not at present involved in
tracing as such, but its other activities, mainly the
forwarding of thousands of messages between prisoners and
families, have resulted in the clarification of numerous
cases of missing persons. ICRC forwards "official
requests concerning missing persons" to Red Cross
Societies as the National Information Bureaux under the
Geneva Convention.
F. Non-governmental organizations
- The Mothers of Vukovar and the Mothers for Peace have
collected an impressive amount of information on missing
persons and have already transmitted numerous cases of
alleged disappearance to the Centre for Human Rights at
Geneva. Various organizations expressed concern that
collective burial sites, reported to contain the remains
of missing persons, had still not been excavated and that
the task was becoming more and more difficult with time.
III. FRAMEWORK FOR ACTION
- The following paragraphs present the outline of a
framework for action on behalf of the United Nations with
regard to the persons reported missing in the former
Yugoslavia. Comparisons are made with the working methods
followed at present by the Working Group on Enforced or
Involuntary Disappearances, with a view to highlighting
the need for a custom-made approach to the problem at
hand. This approach will be referred to as "the
special process".
A. General considerations
1. Perimeter of the framework
- In its report to the Commission on Human Rights at its
forty-ninth session (E/CN.4/1993/25 and Add.1), the
Working Group argued in favor of the establishment of a
separate mechanism to look into the question of
disappearances in the former Yugoslavia. Pointing to its
longstanding working methods, the Working Group posited
in its report that if the Group itself were to assume the
responsibility, its involvement in the matter would
amount, at best, to a bookkeeping exercise, which would
hardly do justice to the proportions of the problem. The
United Nations, according to the report, needed to take
action that transcended symbolic value alone and merited
credibility on the basis of effectiveness. Action which
failed to meet minimum standards of effectiveness might,
in the final analysis, be harmful to the image of the
world organization. This still appears to be the Group's
concern today. Here lies the first segment of the
framework's perimeter.
- Conditions in much of the territory of the former
Yugoslavia are normal; but in large areas they are
totally abnormal, and in these circumstances, channels of
communication usually open to diplomatic intercourse are
sometimes closed for legal, political or merely practical
reasons. Even where such channels are open, they do not
necessarily lead to the best sources of information.
Obtaining information, however, is the most important
objective of any effort to find out what has happened to
people reported missing. The only way, therefore, that
any special process regarding missing persons can produce
results with a minimum of effectiveness, is by taking a
pragmatic approach to the problem. This is the second
segment of the framework's perimeter.
- Any procedure or mechanism the Commission chooses to
establish should take as a point of departure the
predicament of the relatives of missing persons. Its
response to that predicament should be sensible and
responsible and relatives should perceive it as such.
This is the third segment of the framework's perimeter.
- The United Nations has an independent responsibility to
meet the problem of missing persons in the former
Yugoslavia. Through the Working Group on Disappearances,
the Organization is currently dealing with well over
30,000 cases of disappearance in over 60 countries. Faced
with a new situation, of astounding scale and complexity,
the United Nations is not now in a position to say it
prefers to leave the matter in the hands of more
experienced or resourceful organizations - foremost among
these, the International Committee of the Red Cross and
national Red Cross or Red Crescent Societies.
- Nevertheless, parallel efforts inside and outside the
United Nations system produce overlap and duplication.
These must be avoided as much as possible. Certainly, the
United Nations should not attempt to supplant more
established mechanisms for tracing missing persons, even
if it could. The working methods applied by the special
process for missing persons in the former Yugoslavia must
be chosen carefully to avoid undue friction among ongoing
efforts and so as not to hamper other mechanisms and
procedures. This is the fourth segment of the perimeter.
- The Working Group, in successive reports over the past
several years, has voiced growing concern at the lack of
available resources. Support staff made available by the
Centre for Human Rights has been reduced whereas the
workload has grown exponentially. Unfortunately, the
Working Group is no exception in the human rights
program. The United Nations spends less than 0.8 per cent
of its regular budget on the realization of what the
Charter lists among its main purposes: the promotion of
human rights and fundamental freedoms. This situation is
not going to change dramatically in the near future.
Realistically, resources are likely to be extremely
limited for a special process as regards missing persons
in the former Yugoslavia. Proposals regarding the support
staff, equipment and operating expenses of such a process
should therefore be modest. This is the last segment of
the framework's perimeter.
2. Declaration on the Protection of all Persons from
Enforced Disappearance
- On 18 December 1992, in its resolution 47/133, the
General Assembly proclaimed the Declaration on the
Protection of All Persons from Enforced Disappearance. It
seems pertinent at this point to recall that the third
paragraph of the Declaration's preamble of that
resolution contains what may be considered a working
description of a disappearance. The text reads as
follows:
"... [I]n many countries, often in a persistent
manner, enforced disappearances occur, in the sense that
persons are arrested, detained or abducted against their
will or otherwise deprived for their liberty by officials
of different branches or levels of Government, or by
organized groups or private individuals acting on behalf
of, or with the support, direct or indirect, consent or
acquiescence of the Government, followed by a refusal to
acknowledge the deprivation of their liberty, thereby
placing such persons outside the protection of the
law."
- The paragraph is an important one. Clearly, the
Declaration seems predicated on the idea that ultimately
and in a broad sense, a disappearance must be government
sponsored. The idea is conceptually sound: human rights
and fundamental freedoms, by definition, concern the
relationship between a State and the people on its
territory. Violations of those rights, including
disappearances, are carried out or condoned by government
authorities, not by private citizens on their own
account. Rather, the Declaration focuses on private
citizens as typical victims of a disappearance. The ambit
of the Declaration, for example, was not designed to
include military personnel reported as missing in action.
- The Declaration closely reflects the longstanding
criteria employed by the Working Group in this regard
over more than 10 years. The following paragraphs contain
further references to the Declaration to see whether it
provides sufficient latitude for the kind of action that
appears to be needed in the realities addressed by the
present report. It will be argued that, in certain
respects, this may not be the case.
B. Working methods
1. Humanitarian approach
- An overall feature of the Working Group's approach to the
problem of disappearances is that the Group takes a
strictly humanitarian, non-accusatory view of its
mandate. It has consistently held that the Group should
operate as an intermediary between relatives of
disappeared persons and the Governments concerned. On the
one hand it assists relatives in trying to clarify the
fate and whereabouts of their loved ones. On the other
hand, it insists with governmental authorities that they
are responsible for having the matter properly
investigated and should inform the Working Group of the
results. The Group then communicates the information back
to the sources. This is the mainstay of the Group's
efforts.
- By the same toke, the Working Group does not pursue the
question of who is to be held responsible for an
individual case of disappearance. Apart from
considerations of the strictly humanitarian approach of
the Group, any attempt to ascribe responsibility would be
unmanageable and perhaps even counter-productive.
Unmanageable because, given the size of its workload, it
is already difficult enough for the Group to follow up on
a disappearance as such. Attempting in addition to
identify the perpetrators would require capabilities far
surpassing realistic expectations. Counter-productive
because soliciting the cooperation of Governments in
tracking down people who have disappeared is
indispensable; and government authorities are likely to
be less willing to share information with the Working
Group if their cooperation could also lead to the
incrimination of individual government officers.
- On a more general level, however, the Working Group is
indeed interested in responsibility for disappearances.
It considers that impunity is the single most important
factor contributing to the persistence of disappearances
and has argued that perpetrators should be vigorously
prosecuted to the full extent of the law. The special
process for missing persons in the former Yugoslavia
should follow the same approach.
- Although disappearances may be indicative of war crimes
or crimes against humanity, the special process need not
concern itself directly with that aspect of the matter.
The Commission of Experts on the former Yugoslavia,
established by the Security Council pursuant to
resolution 780 (1992), as well as the War Crimes Tribunal
established by the Council pursuant to resolution 827
(1993), are mandated to pursue this question. They
dispose of legal and practical means that are far
superior to those of the Centre for Human Rights. The
question of impunity in the former Yugoslavia, meanwhile,
remains firmly attached to the mandate of the Special
Rapporteur.
- It is suggested, therefore, that the special process
should take a strictly humanitarian, non-accusatory
approach to clarifying cases of missing persons in the
former Yugoslavia.
2. Character of the conflict
- From the very early days of its existence, the Working
Group has taken the view that cases occurring in the
context of an international armed conflict should not be
taken up by the Group. It argued essentially that such a
task far surpassed its resources and, furthermore, that
the International Committee of the Red Cross had far more
extensive experience and elaborate methods for tracing
all categories of missing persons in such circumstances.
Also, the Working Group reasoned that persons who
disappear under detention in situations of international
armed conflict are almost invariably in the hands of the
opposing Power. The determination as regards the ensuing
obligations for the treatment of all persons under
detention, including prisoners of war, falls within the
ambit of the Geneva Conventions (and, at times, of
additional Protocol I). The Working Group is of the view
that ICRC is clearly the competent organization for such
questions of missing persons and that this is true in
particular for combatants. The Working Group has,
however, dealt with disappearances of civilians
(non-combatants) occurring in the context of a
non-international armed conflict.
- As regards the former Yugoslavia, maintaining any sort of
distinction on the basis of the character of the conflict
is not appropriate for the special process. First of all,
there is no authoritative position within the United
Nations system which might give guidance as to whether
the armed conflict in that area is of an international or
non-international character, nor as from what date it
assumed such a character, nor whether the conflict might
be qualified differently for different parts of the area
at any given time. The Security Council avoids qualifying
it and refers to "the armed conflict".
- Second, and more importantly, if the Commission on Human
Rights would opt for a humanitarian approach to the
missing persons - as argued above - relatives in the
former Yugoslavia would not easily understand and most
likely not accept any such distinction if it would mean
taking action on certain cases of missing persons and not
on others. The argument that as of a certain date - if
such date could in fact be identified - the character of
the conflict changed from non-international to
international, would be lost on them; all the more so, if
the change would apply to only one of the two sides of
any given border in the territory. Undoubtedly, it would
appear arbitrary to them if the United Nations were to
take on only cases occurring prior to a certain date, or
occurring in a certain area before a certain date.
- It would seem, therefore, that the character of the
conflict should be regarded by a special process as
irrelevant for the admissibility of cases of missing
persons from the former Yugoslavia. In other words, all
cases of missing persons in the area should, in
principle, be admissible.
3. Link between armed conflict and missing persons
- When dealing with a disappearance of a civilian
(non-combatant) arising in the context of an armed
conflict of a non-international character - Sri Lanka
would be a case in point - the Working Group, as a rule,
makes no distinction as to whether it occurred in an area
where hostilities were in progress at the time, or
alternatively, in a place where more or less normal
conditions prevailed. It is suggested that the special
process for Yugoslavia might wish to take the same
approach.
- The point is being made here for the following reasons.
Theoretically, the Working Group could be entrusted with
the consideration of cases from the former Yugoslavia
that would appear to be "typical" cases of
disappearance, i.e. the kind it would normally take on in
any other country, while leaving the other cases to the
special process. Such a case might present itself (to
give an example of a "typical" case) if
witnesses confirmed that the person concerned had been
detained by law enforcement agents outside an area of
hostilities, and inquiries by relatives had met with
denials by the authorities.
- In practical terms, this would not be workable. The
Working Group would have to decide in each and every case
- sometimes long after the fact - if the disappearance
happened within or outside a combat zone, and whether in
other respects the case would qualify as typically
falling within the Group's mandate. As to the first
question, the Group would no doubt be able to do so in
some cases; but more than probably, it would not be able
to make such a determination in most cases. The second
question would require a case-by-case analysis by the
Working Group of each of the many thousands of cases
pertaining to the former Yugoslavia, in order to
determine whether the case met the Group's criteria. Only
then could the Working Group decide to retain the case or
send it on to the special process. Such an approach would
be unnecessarily cumbersome and would outstrip the
capacity of the Group itself and of the Centre for Human
Rights.
- The Working Group is not at present seized with any case
of disappearance in the former Yugoslavia dating from
before the declaration of independence by Croatia, if
that date were to be taken as the beginning of the
present era of armed conflict in the area. At this point
it seems unlikely that any such case which the Group
might be called upon to consider under its own mandate
will come to be reported.
- The Working Group decided at its thirty-seventh session
to take up a single case from the former Yugoslavia,
notably from Vukovar. That decision, in hindsight, may
perhaps be considered rather hapless in view of the scale
of disappearances in that location at that time and soon
after. It is recommended that this case be transferred to
the special process.
- Finally, there is one more argument against having the
Working Group operate in parallel with the special
process: it would be confusing to authorities in
constituent parts of the former Yugoslavia if they were
to be approached on cases of disappearance by both the
Working Group and by a special process, in particular, as
both would be employing different working methods and
different criteria. Similarly, it would confuse the
relatives.
- It is suggested, therefore, that all cases of missing
persons in any part of the former Yugoslavia should be
considered under the same procedure, regardless of
whether they result from a context of active hostilities
or not.
4. Combatant versus non-combatant victims
- As a matter of principle, the Working Group has avoided
taking on cases of disappearance which concern
combatants. It has focused exclusively on civilians
(non-combatants) who have become victims of disappearance
at the hands of government agents, in the manner
described in the Declaration on the Protection of All
Persons from Enforced Disappearance. Members of movements
such as the Tamil Tigers never came within its purview,
either as victims or as perpetrators of disappearances.
At the same time, the Group has declined to entertain
cases resulting from common crime. For example,
kidnappings by private individuals or by guerilla units
for ransom or other forms of extortion, whether for
political reasons or not, have systematically been put
aside. The Group has termed these "abductions"
rather than "disappearances".
- In the situation encountered in the former Yugoslavia,
such a limitation would be self-defeating. It became
clear during the course of the mission that cooperation
from military authorities in divulging or exchanging
information on missing persons would only be extended if
efforts towards clarification also concerned military
personnel missing in action. Such cooperation would be
essential, as military archives on the war effort
doubtless constitute the single largest source of
information on the fate or whereabouts of those missing.
- Arguing in favor of including military personnel may thus
be courting expediency. Nevertheless, there is something
to be said for it on its merits as well. The sorrow of
relatives of a person missing in action is, after all,
certainly no less than that of a relative of any other
missing person. (An argument, by the way, which the
Working Group has been keenly aware of as pertaining to
its own terms of reference also.) A humanitarian approach
to dealing with the sorrow of relatives of all categories
of missing persons, including combatants, appears
commensurate with the exigencies of the situation in
Yugoslavia.
- In theory, the line should be drawn where a case is
clearly the result of common crime, as one would
decidedly no longer be dealing with human rights abuses.
Conceptual clarity, after all, is not to be neglected,
not even in turbid situations. It may be possible to
distinguish some cases of common crime from a regular
disappearance prima facie. Such cases should be left
aside.
- It is suggested that as a matter of course all cases of
missing persons should, in principle, be admitted into
the special process, regardless of whether the victim is
a civilian (non-combatant) or a combatant.
5. Government involvement or non-involvement
- As recalled in paragraph 31, the Declaration on the
Protection of All Persons from Enforced Disappearance
concerns persons missing as a result of action which in
one way or another was government sponsored. The working
description in its Preamble already draws the circle
rather wide, where it speaks of disappearances carried
out by "private individuals acting ... with the ...
acquiescence of the Government". It is to be
recalled also that the term "Government" refers
not only to the central Government but also to local
authorities. As it is, most of the cases of missing
persons in the former Yugoslavia are covered by the terms
of the Declaration.
- When measured against prevailing realities, the lines
defining the field of action for a special process need
to be drawn wider. First of all, in the chaos now
prevailing in Bosnia and Herzegovina, perpetrators of
cases of missing persons are not easily distinguishable.
Even outside combat zones, the use of violence is
resorted to by the army, the police, militias, civilian
officials and paramilitary forces, as well as by private
armies maintained by powerful warlords. The distinction
between these categories is not always clear; most of
them wear military-style fatigues or camouflage outfits,
carry longarms and move about in olive-green vehicles.
Furthermore, "ethnic cleansing" may take the
form of cases of missing persons imputed to civilians,
sometimes private citizens, if not neighbors. For the
relatives of a missing person, caught in the vortex of
the warring factions, it becomes irrelevant who exactly
bears proximate responsibility. What does matter to them
is which authorities are in a position to bring their
case to the light.
- Secondly, some cases of missing persons probably occur
beyond the effective control of central Government
agencies or local authorities, so that it becomes
difficult to establish whether or not there was
"acquiescence" on their part, as stipulated by
the Declaration. A number of cases of missing persons,
for example, have been attributed to the uniformed
private troops of Mr. Arkan, generally described as a war
lord and reported to hold sway over the area around
Vukovar, in a United Nations Protected Area known as
"Sector East". UNPROFOR, as the administering
power, could certainly not be held responsible for Mr.
Arkan's actions. The latter also appear to be beyond the
effective control of the local authorities in Sector
East, even though individual officials are thought to
condone his actions privately.
- Drawing the lines somewhat wider does not necessarily
contradict the Declaration. The latter does not preclude
action by the United Nations against a wider category of
human rights abuses and forms of violence than
disappearances as covered by the Declaration.
- Once it is accepted that civilians (non-combatants) as
well as combatants would come under the special process
(as argued above), and once it is accepted also that
cases of missing persons need not necessarily be
government sponsored, a distinction in terminology should
be made. The Declaration has reserved the terms
"disappeared" and "disappearance"
for, essentially, non-combatant civilians who have fallen
victim to government sponsored action. As soon as one
addresses a wider group of people, it would be more
accurate to use the term "missing persons". The
term, therefore, includes but is not limited to cases
covered by the Declaration.
- As argued above, some abductions may be due to common
criminals wholly unrelated to hostilities or to the
political and security situation prevailing in the
territory. In so far as such cases can be identified
prima facie, they should be left aside.
- It is suggested, therefore, that as a matter of course
the special process should take up all cases of missing
persons, regardless of whether their perpetrators are in
effect connected to government authorities or not. The
special process should be considered as covering
"missing persons" in a wider sense than implied
by the term "disappeared".
6. Relatives and interlocutors
- Information on cases of disappearance rarely reaches the
United Nations Secretariat directly from the relatives of
the missing person. Usually, a non-governmental
organization acts as a conduit or interlocutor. It may be
anything from a loosely organized group of concerned
mothers to a more structured and well established
international organization. As a general requirement, the
Working Group needs to be satisfied that the interlocutor
acts on behalf of the relatives, i.e. as a minimum with
their tacit or implied approval. The reason for this is
twofold. It highlights the humanitarian nature of the
Group's intervention on behalf of the relatives and it
prevents action by the Group when relatives fear
reprisals. For the latter reason, also, the Working Group
often keeps the identity of the interlocutor confidential
vis-à-vis the Government concerned.
- The special process should adhere to this principle as
much as possible. In practical terms, this may be
problematic. Clearly, in a war ravaged country, where
sometimes whole families, if not neighborhoods and
villages, have been annihilated, possibilities of staying
in contact with the families may quickly become illusory.
Relatives may have become displaced persons or refugees.
Worse, they may themselves be missing, or dead. For much
the same reason, there may not be any member of the
family left to report a case of a missing person to an
interlocutor in the first instance. Of course, under the
circumstances, the fact that nobody is able to inquire
after a missing person should not vitiate the need for
clarification of his or her fate or whereabouts. Some
flexibility is therefore required. Nevertheless, the
special process should include the general notion that
the source is acting on behalf of the relatives.
- Of course, information provided may not always be fully
reliable, particularly in areas where the interlocutors
experience discord with the authorities or where there
are social tensions due to ethnic diversity. In
exceptional cases, interlocutors may, for political or
other reasons, feel tempted to submit unsubstantiated
information. In the experience of the Working Group, it
is not easy to protect a mechanism fully from such a
problem. The Group has no independent means to evaluate
the reliability of any particular source other than on
the basis of a time-tested working relationship with that
source or through information from other reliable local
sources. Obviously it would not be appropriate to seek
the views of the Government on the matter. A prudent
approach and commonsense have thus far been effective
tools, and in practice, there have never been major
problems in this respect. There is no reason why the
special process should not be able to build on this
practice.
- It is suggested, therefore, that the special process
should incorporate a requirement that, wherever possible,
interlocutors act on behalf of the relatives concerned
and that the identity of the interlocutors be kept
confidential vis-à-vis the respondents.
7. Criteria for admissibility
- The Working Group requires a number of minimum elements
of information before it will transmit a case to the
Government concerned. They are the name of the
disappeared, the date and place of disappearance, an
indication of the forces held responsible as well as of
the steps taken by the relatives to clarify the case. In
practice, the Working Group has found that in order to
distinguish two or more otherwise undistinguishable
cases, it is virtually indispensable to know a place of
origin (if not a home address) or age (if not a date of
birth).
- A special process should take its cue from the Working
Group and require at least the following data: the full
names of the missing person (element No. 1); in the case
of missing military personnel, the rank and serial number
would be included (elements Nos. 2 and 3). In order to
distinguish effectively between persons with exactly the
same name, the address or the last place of residence or
the date of birth or the age would have to be available
(element No. 4); preferably, of course, the address and
the date of birth should be available for easy
identification. The next requirements are the place where
and the date on which the missing person was captured,
detained or last seen (elements Nos. 5 and 6). With
regard to these last two elements, allowance would have
to be made for the fact that, particularly in combat
zones, precise information on dates and places may be
difficult to obtain: approximate indications would
therefore suffice to allow transmission. Finally, there
needs to be an indication of the forces held responsible
(element No. 7). Given the plethora of fighting forces,
here again an approximate indication might suffice; it
would, however, be important to know with which side in
the conflict the perpetrators are identified.
- There is another element which the Working Group
requires, namely an indication of the steps taken by the
relatives to locate or ascertain the fate of the missing
person. Clearly, in the context of the situation of the
former Yugoslavia, particularly Bosnia and Herzegovina at
present, such a requirement would be too hard to meet.
- It is suggested that the special process should include
criteria for admissibility as outlined above.
8. Individual approach
- The Working Group has developed a way of processing cases
of disappearance whereby a fact sheet is prepared, with
the help of a computerized standard format, for each and
every case. The sheet comprises all the data supplied by
the source, summarizes responses by the Government, if
any, and indicates the action taken by the Group.
Sometimes correspondence develops with regard to a single
case between the Group and the source or between the
Group and the Government. Forced by the work brought on
by the caseloads from Iraq and Sri Lanka, where many
thousands of cases have had to be processed, the Working
Group has contented itself, in regard to a limited number
of cases from Iraq, with tabulated lists of disappeared
persons comprising abbreviated data for each case.
- In view of the enormous and growing caseload, the special
process would have to resort to the "Iraq"
model followed by the Working Group. This model, even
though simple, would still require computerized database
programming as well as cross-checking of data on a
case-by-case basis. At the level of the United Nations
Secretariat such an exercise would require a computer
trained secretary, an expert familiar with Serbo-Croatian
and with the geography of the former Yugoslavia, as well
as a professional responsible for the general overview of
data processing, external contacts and reporting. It
would also require two computers full time.
- In order to expedite proceedings, interlocutors may be
requested to provide information on computer diskettes.
Some sources have already instituted this practice at
their own initiative.
- It is suggested that the special process should be based
on an individual approach to cases of missing persons in
the form of tabulated computerized lists comprising the
minimum elements of information required.
9. Authorities and organizations to be approached
- Following the established patterns of the United Nations,
the Working Group transmits cases to Governments only,
through Permanent Missions and Ministries of Foreign
Affairs. This approach was predicated on the assumption
that Governments are the prime source of information on
the fate or whereabouts of missing people. The Group has
desisted from soliciting help - and indeed declined
offers - from non-governmental entities, such as
liberation movements, in seeking clarification on any
case of disappearance.
- Clearly, in the context of the former Yugoslavia this
would be a self-defeating approach. Certain parts of the
territory are not States; others enjoy statehood, but are
not recognized by the community of nations; still other
areas are under the protection of the United Nations.
Moreover, since the occurrence of a particular case of
missing persons, borders and sovereign powers may have
shifted, putting a different entity in control of the
place where the events happened. In Bosnia and
Herzegovina, where people continue to be reported missing
throughout the area, one can only speculate who will be
in control of what territory eventually, whereas cases
are being attributed to all parties in the conflict.
Consequently, central Governments of the region may not
effectively possess all the information they would
normally have. Local authorities, in the Krajnas, for
example, may be more valuable as regards a certain
category of cases than the Government in Belgrade, or in
Zagreb for that matter.
- Furthermore, by limiting itself to contacts with
Governments only, a special process might very easily be
sent from pillar to post in a territory where maps tend
to be outdated before they leave the printing shop. Such
a prospect already loomed during the mission.
- Meanwhile, the United Nations efforts towards bringing
peace to the former Yugoslavia have by necessity cut
across established concepts of territorial control,
sovereignty and recognition. Peace talks, as well as
contacts on humanitarian aid and on maintaining public
order, are being conducted by United Nations officials
with different parties, at different levels, governmental
or otherwise, on a daily basis. Building on this, the
special process needs to take a pragmatic view and seek
information on pending cases wherever and from whomever
the information can be obtained.
- The pragmatic approach would imply that reports on cases
of missing persons would be submitted, sometimes
simultaneously, to local, regional or national
authorities, using Foreign Ministries as a focal point
wherever there was one in place. It would also include
contacts with ICRC - although that institution is, of
course, bound to discretion under its mandate -, national
Red Cross Societies and other institutions involved in
tracing activities. Finally, in-house clearance of data
with other United Nations agencies, such as UNHCR and
UNPROFOR, would be de rigueur.
- It is suggested, therefore, that the special process
should take a pragmatic view in following up reported
cases of missing persons by drawing on all available
sources of information.
10. Clarification
- The Working Group considers a case of disappearance
"clarified" as soon as it is seized with
information indicating beyond a reasonable doubt where
the missing person is, either alive or dead, and when the
Group is assured that the relatives will accept such
information as definitive. The special process might wish
to follow the same approach. A mere indication of whether
the missing person is alive or dead would already be a
giant step forward, as it would allow the relatives to
commence a process of mourning and adjustment. Such
information would not, however, mean a final disposition
on the case. In other words, cases would be pursued under
the special process until clarified or until such time as
the Commission on Human Rights decided otherwise.
- It is suggested that under the special process a case
should be considered clarified only once it has been
established where the missing person is, either alive or
dead.
11. Training of interlocutors for relatives
- The special process may wish to include an element of
training for groups and organizations acting as
interlocutors for the relatives of disappeared persons.
Through the Centre for Human Rights in Geneva and the
field office in Zagreb, interlocutors may be instructed
as to how the special process operates and in what format
cases could best be submitted. This may expedite
proceedings considerably, while at the same time
preventing false hopes and unrealistic expectations about
what the United Nations can achieve.
- It is suggested that the special process should devote
ample time to instructing the relevant parties on the
working methods to be followed.
12. Communication with authorities and organizations
- Needless to say, authorities and organizations to be
approached under the special process must be fully
informed about its objectives and working methods, as
well as about the level of cooperation expected from them
by the United Nations.
- It is suggested that under the special process
authorities and organizations approached with a request
for information on cases of missing persons should be
duly informed about its objectives and modus operandi.
13. Character of the special process as a whole
- The special process, for pragmatic reasons if none other,
is essentially one that is conducted through
administrative channels, involving database handling and
correspondence. It would not involve any form of
negotiation or consultation on the exchange of
information or other matters, leaving those to more
experienced organizations or to institutions that are
better placed. This particular feature seems worth
highlighting in view of the need, identified in paragraph
28, to avoid undue friction among ongoing efforts towards
clarifying the fate and whereabouts of missing persons.
- Meanwhile, labeling the special process
"administrative" is not intended to suggest
that the involvement of the United Nations as such in the
matter would not extend beyond bureaucratic routine, and
even less that its value would only be symbolic. On the
contrary, the span of action and methods of work
recommended in the present report represent an honest
attempt to meet the exigencies of the situation within
the constraints of the system.
- It is suggested that the focus of the special process
should not be on consultations or negotiations regarding
the exchange of information on missing persons.
IV. IMPLEMENTING MECHANISM
- The question to be examined now is who or which mechanism
should be entrusted with the process. There are basically
two options. One possibility would be to leave the
mandate in the hands of the Secretary-General. The other
possibility would be to assign it to a mechanism - a
special rapporteur, a working group or a representative
of the Secretary-General - answerable to a parent body.
As regards the second option, one would have to choose
between an existing or a new mechanism and decide on a
parent body.
- Numerous assignments encompassing many parts of the world
have been given to the Secretary-General. In the field of
human rights there are a growing number of examples. Some
of them involve substantial operational activities over a
longer period of time. A case in point is the United
Nations Observer Mission in El Salvador (ONUSAL). In view
of this, an argument could be made to place the
responsibility for the special process with the
Secretary-General. In practice, this would mean that the
report on the relevant activities would be issued as a
report by the Secretary-General to, in all likelihood,
the Commission on Human Rights, and that a representative
of the Secretary-General, for example an officer of the
Centre for Human Rights, would present the report orally
during a session of the Commission.
- The Commission on Human Rights has in the past requested
the Secretary-General to designate a special
representative to deal with particular questions, such as
the human rights situation in Iran. Such a representative
operates under the authority of the Secretary-General. As
such, he or she has, in practical terms, somewhat more
latitude than the Secretary-General himself and perhaps
somewhat less than a special rapporteur, who acts in his
private capacity. In any event, designating a special
representative of the Secretary-General would be
tantamount to establishing a new mechanism.
- Institutionally, the United Nations involvement in the
former Yugoslavia is solid. Both the Security Council and
the General Assembly have dealt with the matter
extensively and the Commission on Human Rights devoted
its first two emergency sessions to the same question. A
United Nations mediator, Mr. Thorvalt Stoltenberg, has
been deployed, reporting to the Secretary-General and the
Security Council. The Council has set up the Commission
of Experts on the former Yugoslavia, as well as the War
Crimes Tribunal. The Commission on Human Rights has
appointed a special rapporteur to look into the human
rights situation in the former Yugoslavia, assisted by a
field office of the Centre for Human Rights, in Zagreb.
UNPROFOR is charged with keeping the peace in the area,
while other United Nations agencies - UNHCR taking the
operational lead - have a presence there as well. The
European Union has solicited the help of Lord Owen and
has put an entire monitoring mission in place. In
addition, ICRC has a strong presence in the former
Yugoslavia. To add yet another mechanism especially for
missing persons in the former Yugoslavia would amount to
over-saturation.
- Like all the thematic mechanisms that have followed it,
the Working Group on Enforced or Involuntary
Disappearances was established to look into developments
as regards a single phenomenon worldwide. Country
rapporteurs, on the other hand, are generally mandated to
look into the entire range of human rights violations in
a given country, including disappearances. The
distinction between the two types of mechanisms has been
maintained rather carefully by the Commission on Human
Rights ever since 1980, the year in which the Working
Group was established. It would be superseded if now a
new thematic mechanism were to be put in place for a
single area.
- In any event, it would seem appropriate to opt for the
Commission on Human Rights as the parent body for the
mechanism concerned. Clarifying cases of missing persons,
on a humanitarian basis, does not fall within the mandate
of the Security Council, while the General Assembly does
not dispose of satellite bodies such as the one
contemplated. The Commission's involvement in the matter,
on the other hand, is long-standing, as evidenced by the
activities of the Working Group.
- It is envisaged, therefore, that the special process
should be entrusted to an existing mechanism or
mechanisms of the Commission on Human Rights.
- As is pointed out in the preceding section, the special
process could not be carried out by the Working Group on
Enforced or Involuntary Disappearances as part of its
regular activities. Its working methods differ
substantially from the ones needed to meet the particular
requirements of the situation in the former Yugoslavia.
Needless to say, the Group could not be expected to
follow special working methods for one particular
situation, however important, while maintaining the
established modus operandi for all other situations.
Furthermore, the Group already has a backlog of over
8,000 cases as it is, and would be unable to assume the
case-load from the former Yugoslavia, estimated to run
into well over 15,000 cases in the near future. The Group
has argued as much in its report to the Commission on
Human Rights at its forty-ninth session (E/CN.4/1993/25,
paras. 36-44).
- The Special Rapporteur on the situation of human rights
in the former Yugoslavia, on the other hand, has been
broadly mandated to look into all aspects of the matter.
There is no reason why he should not undertake to look
more closely into one particular part of the overall
situation, into the clarification of cases of missing
persons. Meanwhile, the Working Group should not sidestep
its own responsibility as regards disappearances proper,
wherever they occur, including in the former Yugoslavia.
- Therefore, a joint venture between the Special Rapporteur
and one member of the Working Group might be the most
suitable solution for dealing with all cases of missing
persons in any part of the former Yugoslavia. To be more
specific, the Working Group may wish to designate one of
its members to implement the special process together
with the Special Rapporteur. Their combined activities
might be reflected in a joint annual report to the
Commission on Human Rights. The first of such reports
would be submitted to the Commission at its fifty-first
session. Field visits on the subject-matter would in
principle be carried out independently by the member of
the Working Group concerned.
- Given the interest of the General Assembly in the matter,
there is no reason why the Special Rapporteur and the
responsible member of the Working Group should not report
jointly also to that body directly. The first of such
reports might be submitted to the General Assembly at its
forty-ninth session.
- The Working Group should recommend that the special
process should be entrusted to the Special Rapporteur on
the situation of human rights in the former Yugoslavia
and to one member of the Working Group on Enforced or
Involuntary Disappearances as a joint mandate, resulting
in joint reports to the Commission on Human Rights and,
possibly, the General Assembly. The Working Group would
designate one of its members to carry out the task.
- As follows from the preceding chapter, in terms of
administrative substructure, the special process could be
supported by the pertinent unit of the United Nations
Office at Geneva, at the discretion of the
Secretary-General, presumably the Special Procedures
Branch of the Centre for Human Rights, now dealing with
human rights violations and violations of humanitarian
law in the former Yugoslavia. Although the size of the
operation would represent the bare minimum of an adequate
United Nations response, operating costs are estimated to
be approximately United States dollars 180,000 per annum.
- The Working Group should recommend that the special
process should be supported administratively by the
Centre for Human Rights.
V. CONCLUDING OBSERVATIONS
A. The visit
- A member of the Working Group on Enforced or Involuntary
Disappearances undertook a visit to parts of the former
Yugoslavia from 4 to 13 August 1993. He did so on behalf
of the Working Group as a whole and at the request of the
Special Rapporteur of the Commission on Human Rights as
regards the former Yugoslavia, Mr. Tadeusz Mazowiecki.
The member of the Group visited Zagreb, Belgrade and two
United Nations Protected Areas (UNPAs) known as Sector
East (enclosing the town of Vukovar) and Sector West.
Unfortunately, a visit to other parts of the area,
notably Bosnia-Herzegovina, could not be arranged owing
to the conditions prevailing.
- The purpose of the visit was markedly different from
others which the Working Group had undertaken until then.
Normally, the Group would dispatch two or three of its
members to identify the "mechanics" and the
"actors" in a given situation of
disappearances, isolate the root causes of the problem,
promote the clarification of disappearances and
investigate how new cases might be prevented from
happening. Such a visit would then result in a separate
report, containing a description of the context of
violence in which the disappearances occurred, the legal
and institutional background, an analysis of the data,
and the viewpoints of the parties concerned, followed by
conclusions and recommendations.
- In the present instance, the objective was to have
conversations with various parties who might have an
opinion on how the problem of disappearances in the
former Yugoslavia could best be approached. The purview,
therefore, was not an analysis of the situation as such,
but identifying a framework for action by the United
Nations. Such a framework would, in the first instance,
be decided on by the Commission on Human Rights, upon
recommendations to be formulated by the Special
Rapporteur. It is hoped that the present report may serve
as guidance to the latter.
- The visit, by and large, went smoothly and served its
purpose well. The Governments in Zagreb and Belgrade were
cooperative, while other interlocutors, such as national
Red Cross Societies and groups of relatives of missing
persons, proved to be hospitable and their explanations
instructive. UNPROFOR officials not only provided
valuable information but also proved adroit in making
travel arrangements in the area.
B. The findings
- Hardly any mission, whatever its purview, would return
optimistic from the former Yugoslavia, for the realities
of the situation there are staggering and opportunities
limited. Looking into the matter of disappearances proves
no different. The problem is formidable and, worse still,
it is growing at a horrifying pace. The United Nations
Secretariat is now seized with over 7,000 cases of
missing persons. Estimates, based on the visit, are that
the number may be well beyond 15,000 in the next six
months. Meanwhile, the war in Bosnia and Herzegovina
rages on. The number of missing persons resulting from
that part of the conflict is anybody's guess for the time
being. One should therefore have no undue illusions about
what the United Nations could possibly achieve in terms
of bringing these cases to light, not to mention
preventing new ones. The International Committee of the
Red Cross, for its part, is not at present undertaking
any conventional tracing in the area, concentrating
instead on other activities, such as the exchange of
family news, which has resulted in clarifying the fate
and whereabouts of large numbers of persons originally
reported to be missing.
- Nevertheless, the United Nations is being perceived as
having an independent responsibility to act on cases of
missing persons. This is not only felt at the level of
the Mothers of Vukovar and the Mothers for Peace, but
also in circles of Red Cross Societies and by government
authorities. They recognize that the United Nations has
already taken action on disappearances worldwide and
expect therefore that their own predicament will be
addressed soon. Some groups of relatives, it turned out,
had begun to doubt whether the United Nations would ever
move on the matter. After all, the war between Croatian
forces and the Yugoslav People's Army started over two
years ago and all that the United Nations has done as
regards disappearances thus far is to take up one case
from Vukovar.
- There is clearly an astounding lack of political will to
exchange information on victims of war. This is true for
the Croatian and the Yugoslav sides, but also, it is
suspected, for the fighting parties in Bosnia and
Herzegovina. Discussions on the matter between government
representatives, if they take place at all, are carried
out without any fervor and produce a minimum of results.
The expectation is that as long as the war goes on and
the underlying territorial and social conflicts are not
resolved, none of the parties will show any great
eagerness to share information with the others.
Meanwhile, there is little doubt in the minds of parties
in Zagreb and Belgrade that the pertinent information is
indeed available, carefully stored away in police and
military archives. Generating political will is therefore
a prerequisite for even beginning to uncover the fate and
whereabouts of the missing persons. Fulfilling that
prerequisite lies, of course, well beyond the parameters
of the present exercise.
- One would hope that sufficient political will materialize
once peace is established. But, it is a matter of concern
that, as soon as peace accords are signed and observed,
two countercurrents may hamper the clarification of the
cases of missing persons, as the Working Group has
observed for disappearances in a number of other
situations. The first is that, generally, at the
beginning of reconstruction after a devastating war, a
nation as a whole tends to be looking forward rather than
focusing on the past. Bygones must be bygones, without
prejudice to respect for those who grieve over the loss
of a spouse, a parent or a child. At the same time, when
deep-seated hatred or mistrust keeps the issue of war
casualties alive, readiness to exchange information on
them is not necessarily going to be any greater than
before. Settling the score, as it were, deprives the
parties of leverage in dealing with lingering misgivings
over the price of peace.
- The second countercurrent is the following: uncovering
the fate and whereabouts of missing persons may amount to
uncovering traces of war crimes or crimes against
humanity. It is doubtful whether this would find favor
with the political leadership of the day. As a
consequence, they may be reticent in lending active
support to bring evidence to the surface.
- Mass graves will remain a problem for a long time. During
the visit, a number of reported "irregular"
burial sites were observed, in different parts of the
country, allegedly containing the remains of persons of
different ethnic extraction. For the purpose of
uncovering evidence of war crimes, sample exhumations at
a mass grave are sufficient. Perpetrators are more
relevant than victims in that context. By contrast, for
the purpose of clarifying cases of missing persons, all
bodies must be exhumed and if possible identified. Apart
from manifold sensitivities - political will must be
unconditional - such an undertaking would be a Herculean
task. The United Nations should seek to establish such a
forensic enterprise under its auspices, help to find
available experts and procure funds, if need be from
private sources.
- Even then, in the best of scenarios, large numbers of
pending cases will remain. Some cases simply can never be
resolved. After all, tracing people from the First World
War continues to this day. In the sentiments of the
Balkanites, those missing persons will always serve as a
reminder of what was done to them, keeping the dust from
settling once and for all. That perhaps would be the
ultimate irony.
VI. SUMMARY OF PROPOSAL
- The perimeter of the framework for action, discussed in
the present report, consists of five segments. Action by
the United Nations on missing persons in the former
Yugoslavia (the "special process") should meet
minimum standards of effectiveness. It must take a
pragmatic approach. It should take the predicament of the
relatives of missing persons as its point of departure
and formulate a sensible response to it. Undue friction
with ongoing efforts to trace missing persons should be
avoided. Operating costs are to be realistic.
- The special process should take a strictly humanitarian,
non-accusatory approach to clarifying cases of missing
persons in the former Yugoslavia. The character of the
conflict, i.e. whether it is international or
non-international, should be regarded as irrelevant for
the admissibility of cases. All cases of missing persons
in any part of the former Yugoslavia should be considered
under the same procedure. All such cases should, in
principle, be considered under the special process,
regardless of whether the victim is a civilian
(non-combatant) or a combatant and regardless of whether
the perpetrators are in effect connected to the
Government or not. In other words, the target group would
be wider than the one covered by the Working Group on
Enforced or Involuntary Disappearances and by the
Declaration on the Protection of All Persons from
Enforced Disappearance. For conceptual clarity, using the
wider term "missing persons" would set the
target group apart from the more circumscribed group of
"disappeared persons".
- The special process should incorporate a requirement
that, wherever, possible, interlocutors act on behalf of
the relatives concerned and that the identity of the
sources be kept confidential vis-à-vis the authorities
or organizations addressed. Clear and pertinent criteria
for admissibility should be established for all cases of
missing persons. The process should be based on an
individual approach to such cases in the form of
tabulated computerized lists containing the minimum
elements of information required. The special process
should draw on all available sources of information. A
case should not be considered clarified until it has been
established where the missing person is, either alive or
dead. Ample time should be devoted to instructing
interlocutors on the working methods followed.
Authorities and organizations approached with requests
for information should be duly informed about the
objectives. The special process should not involve
consultations or negotiations on the exchange of
information.
- The special process should be entrusted to the Special
Rapporteur on the situation of human rights in the former
Yugoslavia in a joint mandate with one member of the
Working Group on Enforced or Involuntary Disappearances,
resulting in joint annual reports to the Commission on
Human Rights and, possibly, the General Assembly.
(c) Copyright 1997
Office of the United Nations High Commissioner for Human
Rights
Geneva, Switzerland
Posted on 1999-01-01
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