Grażyna Baranowska, Senior Researcher at the Centre for Fundamental Rights of the Hertie School in Berlin and Assistant Professor at the Institute of Law Studies of the Polish Academy of Sciences[1]
Externalizations practices, such as carrier sanctions or pullbacks, force persons on the move to select more dangerous routes to reach their countries of destiny. In consequence, every year, thousands of migrants go missing on life-threatening routes. They leave behind families and communities suffering from the uncertainty of not knowing what has happened to them, whether they are alive or dead. In their search for missing migrants, they face major challenges, inter alia due to geographical distance from the place of disappearance, language barriers and not knowing domestic law. This paper demonstrates that in some contexts states are required to support the families and communities in their search. It also presents two measures that states can take to support persons in their search for missing migrants.
1. Introduction
Externalizations practices, such as carrier sanctions or pullbacks, force persons on the move to select more dangerous routes to reach their countries of destiny. In consequence, every year, thousands of migrants go missing on life-threatening routes. All of them leave behind persons, who suffer not knowing what happened to their loved ones, whether they are alive or not. They all seek to receive information about the fate and whereabouts about the missing persons. Finding out what has happened to them is a major challenge, inter alia due to geographical distance from the place of disappearance, language barriers and not knowing domestic law. Because of that, families and communities of missing migrants require additional and targeted support in their search. Such support requires states to take actions also extraterritorially and in cooperation with other states.
Practically, once a person on the move goes missing, it is usually not possible to establish immediately under which circumstances this has happened. The usual uncertainty characterising the disappearances of a person is heightened by the challenge of disappearances in migratory contexts, due to, among others, the different countries involved and inherent movement of the missing person. However, legally, identifying the circumstances in which a person has disappeared is extremely important, as they determine which state is under which obligations. For example, a person is last in touch with their relatives and community of origin when being in Libya, aiming to reach Italy, but the family does not know where and how the person went missing. The person could be alive in Libya, secretly detained by state officials, or a victim of slave labour, or be dead, after having been killed by a criminal group and disposed in an unmarked grave. Or, the person could have drowned in the Mediterranean Sea, either in the high sea or in territorial waters. Or, the person did arrive in Italy but was trafficked or kidnapped right after arriving. Each of these situations could trigger a different set of obligations for different states.
In certain contexts – and in some of the situations described above –, states are required to support the families and communities in their search, particularly under international human rights law and international humanitarian law. Thus, the relevant obligations are analysed in section 2. However, in migration contexts it usually is not possible to establish with certainty at the stage of the search what exactly has happened to the missing person. Thus, an approach which does not distinguish between different categories is needed. Section 3 presents two specific measures of supporting persons in their search for missing migrants, namely humanitarian visas and the possibility to file search requests at embassies and consulates.
2. Families and communities of missing persons[2]
While various areas of international law are relevant for missing migrants, only two areas contain provisions aimed specifically at families and communities of missing persons: international humanitarian law and international human rights law. Victims of ‘enforced disappearances’ are not only the disappeared persons, but also all those close to them who suffer as a direct result of the disappearance.[3] This clearly goes beyond the nuclear family and can also cover community members. In particularly indigenous communities have been explicitly found to been affected by enforced disappearances of their members. While international humanitarian law uses in this context the word ‘family’, the ICRC commentary explains that the term includes in this context not only blood relatives and legal ties, but also personal and emotional ties.[4]
2.1. International humanitarian law
International humanitarian law (IHL) is a relevant area of international law, because it contains provisions relating explicitly to families of missing persons. It is also directly relevant to missing migrants when people flee countries due of armed conflict or occupation, as IHL treaty law applies to those that went missing in connection with armed conflict or occupation.[5] Thus IHL is – in certain contexts – also directly applicable to missing migrants. An example could be a Syrian fleeing the war and going missing while on the move, possibly in a neighbouring country.
The 1949 four Geneva Conventions contain provisions aimed at preventing persons from going missing, including ensuring that the dead are accounted for. While they do contain some provisions protecting family rights and aiming at not separating families,[6] the Geneva Conventions do not provide details on the practical aspects of the search for missing persons, and do not set the families at the centre of the search.
Rights of families of persons going missing during international armed conflict were strengthened significantly in 1977 through the adoption of Additional Protocol I. It explicitly places families of missing persons in the picture by stating that, in implementing its provisions concerning missing and dead persons, parties to an international armed conflict and humanitarian organizations ‘shall be prompted mainly by the right of families to know the fate of their relatives’.[7] As mentioned, the term ‘family’ includes also personal and emotional ties.[8] The Additional Protocol contains detailed provisions concerning the search for the missing, identification of the dead and maintenance of grave sites. Families have the right to receive information about missing persons when their fate has been established. They also have the right to access to grave sites if the missing persons has died. In contrast to international human rights law (see below), IHL does not however contain an obligation to keep the family informed about the progress of the search.
2.2. International human rights law
Some missing persons are forcibly disappeared, meaning that they were deprived of their liberty, by agents of the state or persons or groups of persons acting with at least the acquiescence of the state, which was then followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person. While clearly not every missing migrant is a victim of an enforced disappearance, this violation of multiple human rights also takes place with regard to persons in migration. This poses many challenges and legal questions that were addressed by the two main UN human rights bodies created to address enforced disappearances. The UN Working Group on Enforced or Involuntary Disappearances adopted in 2017 a comprehensive study on enforced disappearances in the context of migration,[9] and the UN Committee on Enforced Disappearances adopted in 2023 its very first General Comment on this topic.[10]
For families, recognizing that a disappearance is an enforced disappearance, has extremely important consequences, as under international human rights law ‘any individual who has suffered harm as the direct result of an enforced disappearance’ is considered a victim and, as such, entitled to the enjoyment of a set of rights. As recognized in the International Convention for the Protection of All Persons from Enforced Disappearances (Enforced Disappearances Convention), each victim has, among others, the right to know the truth regarding the circumstances of the enforced disappearances, as well as the progress and the results of the investigations, and the fate and whereabouts of the disappeared persons. States parties of the Enforced Disappearances Convention are obliged to take appropriate measures in this regard (Article 24). If there are enforced disappearances occurring in the context of migration, this obligation requires to take actions also extraterritorially and in cooperation with other states, as this is the only way to reach families that do not reside in the place where the disappearance occurred.
2.3. Obligations of cooperation between states
To establish the fate and whereabouts of some missing persons, the cooperation of various states is required. This has been acknowledged also in IHL and the Enforced Disappearance Convention. Of course, such a cooperation is particularly important in cases of missing migrants, which inherently contain a cross-border element.
Under IHL parties to a conflict are required to transmit information and agree on arrangement to search for, identify and recover the dead, as well to facilitate access to gravesites or return of remains.[11] While this is certainly important for families of missing persons, it is not likely to be relevant for a significant number of missing migrants, as the obligation only concerns parties to the particular conflict and not other states the persons might be fleeing to.
The Enforced Disappearances Convention requires states to cooperate with each other and afford one another the greatest measures of mutual assistance to victims of enforced disappearances – which includes families – in the search for, locating and releasing disappeared persons, or in the event of death, in exhuming and identifying and returning the remains (Article 15). Thus, if persons go missing in migration and they are reasonable ground to believe this was an enforced disappearance, states are obliged to cooperate with other states to support their families in the search.
3. Examples of supporting families of missing migrants
Scholars and international organizations have called upon states to more effectively support families and communities of missing migrants.[12] Some states, particularly in Central and Southern America, have already started to implement some crucial measures. This section will present two ways in which persons searching for missing migrants can be supported, namely by being provided humanitarian visas and giving them the possibility file search requests at consulates. Of course, there are also other ways of possible supporting persons in their search, for example through setting up specialized search units for missing migrants or providing persons searching for them with financial support for their individual search. Those two measures have been selected because they have already been used for many years by some countries and have been recommended by several international organizations.
3.1. Issuing humanitarian visas for families
In their attempt to establish the fate and whereabouts of missing migrants, persons often move across borders and find themselves in danger.[13] An example is the complaint brought to the UN Human Rights Committee concerning a Syrian based in Germany, who went to Greece to look for his missing 11-year-old brother and was deported to Türkiye. As he was stripped of his documentation, it took him one year to regain access to the European Union.[14] In Central America, many family members from Honduras and El Salvador travel to Mexico to search for their missing loved ones, where they are in great danger of being victims of violence.
Such journeys aimed at searching for missing loved ones can be made significantly safer for persons searching, if states issue them humanitarian visas. Such visas should not be only expedited to blood relatives, but also to others, such as members of the same indigenous community who aim at searching. In this way they could travel safely to the country where the missing person was last seen, participate in the search and get access to information about their loved ones. As stated by the Committee on Enforced Disappearances in its General Comment on Enforced Disappearances in the Context of Migration, state parties to the Enforced Disappearances Convention should provide families with humanitarian visas.[15] This practice has been offered by Mexican consulates across several states in Central and Southern America, from where many migrants that went missing in Mexico come from. While the process is not smooth and has its practical challenges, the very possibility to receive a humanitarian visa in order to make the search for their missing loved ones safer is an important initiative.[16]
3.2. Submitting search requests at consulates and embassies
Another way to support families and communities in their search for persons that went missing in migration, is giving them an opportunity to submit a search request at consulates and embassies. In the vast majority of domestic legislations, search requests can only be submitted in the country where the person went missing, either personally or through a legal representative.[17] Thus, submitting a search request requires from the family significant financial involvement and usually involves a person needing to travel. Giving families the possibility to file such a request at a consulate or embassy makes it significantly easier and less costly, thus available also for low-income families. Moreover, the opportunity to lodge such a request in the country of origin allows families to avoid having to navigate complex bureaucratic processes, often clashing against practical barriers, including language and lack of legal standing before certain systems.
The possibility to submit such requests in certain cases, was made possible by Mexican authorities in consulates and embassies in Honduras, El Salvador and Guatemala.[18] While such a practice has not been repeated in other regions, some EU countries have also engaged in promising practices between consulates. For example, the Iraqi consulate in Greece and the Greek consulate in Iraq have cooperated in order to identify missing Iraqis in Greece.[19] This however would be much more meaningful for families if they could directly contact consulates and embassies.
3.3. Applying such measures at the EU level
Both humanitarian visas and search requests at consulates and embassies have so far been applied in Central and South America, in a context where people predominantly speak the same language and have a similar legal culture. Furthermore, both measures are implemented by Mexico, a state of transit for all the migrants concerned, so there are usually no doubts about the state in which the migrants went missing. All these factors are very different on an EU level, but the measures could still be applied and would make the search for missing migrants significantly easier. As the described cooperation between Iraq and Greece shows, EU states can identify other states (or regions), from which migrants that went missing came from, and reach out to those particular states to make possible lodging search requests in these states. As it is not always clear in which state the person went missing, it would make sense for states on a particular migration route to cooperate and coordinate such actions, undertaking bilateral or multilateral agreements for such purposes.
4. Conclusion
When a person goes missing, their family is deeply affected. They suffer from the uncertainty of not knowing what has happened to their loved one, whether they are alive or dead.[20] Because of that, throughout the world, family members are the main drivers of searches of missing persons.[21] This is true also for persons going missing in migration, but in order to effectively search, the persons searching usually need to reach the country where their loved ones have disappeared. As families and communities usually know information that could prove crucial in establishing the fate of a missing person, they are key in the search and every search should respect the right to participation.[22] Supporting them is not only important to address their needs, but it is simply the most effective way to establish the fate and whereabouts of the missing migrants. If a person went missing because of an enforced disappearance – and this could happen for example as a result of pushbacks – states parties to the Enforced Disappearances Convention are under an obligation to support families in their search.
Finally, this paper focused on concrete measures of support in the search for missing migrants. However, in the context of enforced disappearances, obligations of states extend beyond support for the search. States should also provide families measures of reparation, as well as prompt, fair and adequate compensation. Additionally, while continuing the investigation until the fate and whereabouts of the disappeared person have been clarified, states are to take appropriate steps with regard to the legal status of forcibly disappeared persons whose fate has not been clarified and that of their relatives, in fields such as social welfare, financial matters, family law and property rights.
Acknowledgement: This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 101026079.
Footnotes
[1] While the author is a member of the United Nations Working Group on Enforced or Involuntary Disappearances (WGEID), the opinions expressed are strictly personal and do not in any way reflect the position of the WGEID.
[2] This section is based on Grażyna Baranowska, ‘The Rights of the Families of Missing Persons: Going Beyond International Humanitarian Law’, Israel Law Review 55(1), 2021, 25-49.
[3] International Convention for the Protection of All Persons from Enforced Disappearance (entered into force 23 December 2010) 2716 UNTS 3 (ICPPED), 24.4.
[4] See Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC and Martinus Nijhoff 1987), 346, para 1215.
[5] Marco Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare (Edward Elgar 2019) 339
[6] Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287, 27(1), 49(3), 82(3).
[7] Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I), art 32.
[8] See Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC and Martinus Nijhoff 1987), 346, para 1215.
[9] UN Working Group on Enforced or Involuntary Disappearances, Report of the WGEID in the context of migration, UN Doc A/HRC/36/39/Add.2, 28 July 2017.
[10] UN Committee on Enforced Disappearances, General comment No. 1 (2023) on enforced disappearances in the context of migration, CED/C/GC/1, 26 October 2023.
[11] Additional Protocol Article 33 and 34.
[12] Gabriella Citroni ‘The first attempts in Mexico and Central America to address the phenomenon of missing and disappeared migrants’ International Review of the Red Cross (2017) 99(2); IOM, Support Needed for Families of Missing Migrants: Evidence from IOM’s Project “Assessing the Needs of Families Searching for Relatives Lost in the Central and Western Mediterranean”, 2021, https://publications.iom.int/books/support-needed-families-missing-migrants-evidence-ioms-assessing-needs-families-searching.
[13] UN Working Group on Enforced or Involuntary Disappearances, Report of the WGEID on enforced disappearance in the context of migration, UN Doc A/HRC/36/39/Add.2, 28 July 2017, paras. 7-13.
[14] GLAN, Enforced disappearance & expulsion at Greece Evros Border, https://www.glanlaw.org/enforced-disappearance-greece.
[15] UN Committee on Enforced Disappearances, General comment No. 1 (2023) on enforced disappearances in the context of migration, CED/C/GC/1, 26 October 2023, para. 46.
[16] Gabriella Citroni ‘The first attempts in Mexico and Central America to address the phenomenon of missing and disappeared migrants’ International Review of the Red Cross (2017) 99(2).
[17] As an example, see Spain IOM, Families of Missing Migrants: Their Search for Answers, the Impacts of Loss and Recommendations for Improved Support, https://publications.iom.int/books/families-missing-migrants-spaintheir-search-answers-impacts-loss-and-recommendations-improved p. 28-29.
[18] Gabriella Citroni ‘The first attempts in Mexico and Central America to address the phenomenon of missing and disappeared migrants’ International Review of the Red Cross (2017) 99(2), p. 755.
[19] ICMP 2021 Global Report https://icmp.int/?resources=global-report-on-missing-persons-2021, p. 24.
[20] Simon Robins, Families of the Missing: A Test for Contemporary Approaches to Transitional Justice (Routledge
2013); Pauline Boss, Ambiguous Loss: Learning to Live with Unresolved Grief (Harvard University Press 2000).
[21] Iosif Kovras, Grassroots Activism and the Evolution of Transitional Justice: Families of the Disappeared (Cambridge University Press 2017).
[22] UN Committee on Enforced Disappearances, CED/C/7, Guiding principles for the search for disappeared persons, Principle 5. https://www.ohchr.org/en/documents/legal-standards-and-guidelines/guiding-principles-search-disappeared-persons