Futureproofing Human Rights Symposium: Living up to Obligations Through the International Red Cross? A Critique of States’ Attempts to Shift Obligations When Addressing Missing Persons

[Grażyna Baranowska is a Professor of Migration Law and Human Rights at the Friedrich-Alexander-Universität Erlangen-Nürnberg and the Vice-Chair of the UN Working Group on Enforced and Involuntary Disappearances.

Dr Nasia Hadjigeorgiou is an Associate Professor in Transitional Justice and Human Rights at UCLan Cyprus.]

People have always gone missing and their loved ones have always sought to establish their fate. In this endeavour, they have long been supported by the International Red Cross movement. While states have, to a certain extent, also aided the families’ efforts in this regard, their legal obligations to do so only formally arose with the development of international human rights law and international humanitarian law. We argue that both historically and currently, states have been taking actions to comply with their obligations, but have not been meeting these fully. In turn, they justify their (partial) failure to comply with such legal obligations by seeking to shift their responsibility to the International Red Cross movement. Yet, this attempt to shift responsibility diminishes the accountability of states – which remain the duty bearers – and may lead to rightlessness of the missing and their families.

Human rights accountability has tended to be viewed through the lens of state-centric, legal approaches. In reality, other actors also play a role in ensuring greater human rights accountability. While new accountability practices can be welcomed, there are inherent dangers where states rely on the existence of alternative accountability holders to dilute their own obligations under international human rights law. In a previous blog, Gustavo Prieto asked what we can gain through embracing new polycentric systems of human rights accountability. Here, we ask, what might we lose?

State Obligations Relating to Missing Persons

States’ obligations in relation to missing persons arise by virtue of them becoming parties to international treaties. Conversely, the International Red Cross and Red Crescent movement – while an important international actor when addressing missing persons – is not a party to these legal instruments and, therefore, not bound by them.

The types of obligations that a state has in relation to missing persons depend on three sets of factors. First, the circumstances of the disappearance (whether it is due to state violence, or the person went missing due to other reasons); second, the area of international law that applies in each case (namely, international humanitarian law and/or international human rights law); and, third, in case a disappearance took place during an armed conflict, whether this is international or non-international. Such obligations are found in the 1949 Geneva Conventions, the 1977 Additional Protocol, the 2006 International Convention on the Protection of all Persons from Enforced Disappearances and have also been derived from interpretations of the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the American Convention on Human Rights.

To illustrate states’ attempts to shift their legal responsibilities, we concentrate on two sets of obligations with regard to missing persons: the legal duty to investigate losses of life and obligations relating to enforced disappearances. As for the first obligation, of course, not all missing persons are dead; however, when they are, or there is a high likelihood that this has occurred, obligations to investigate the potential loss of life kick in. Relating to the second set of obligations, enforced disappearances occur when persons were deprived of their liberty with the support or acquiescence or of a state, which was then followed by a refusal to acknowledge their deprivation of liberty and shed light on the individual’s fate or whereabouts. While all forcibly disappeared persons are missing, not all missing persons are forcibly disappeared. This second set of obligations, therefore, only arises in relation to a sub-group of missing persons. To achieve full – or thick – accountability, states need to live up to these obligations.

Attempts to Shift Obligations to the International Red Cross Movement

The International Red Cross movement – consisting of the International Committee of the Red Cross (ICRC), National Red Cross and Red Crescent societies, and the International Federation of the Red Cross and Red Crescent Societies – plays an essential role in dealing with missing persons around the globe and has a long history in this regard. Indeed, it has a mandate under International Humanitarian Law to do so during armed conflict (see here and here), but does not have an obligation to do so. Some of the actions taken by the International Red Cross, such as providing psychological support to families, are not state obligations under international law. Others, like identifying remains after violent losses of lives or providing certain trainings to state authorities, are. Irrespectively of whether a state is obliged under international law to undertake certain actions, the International Red Cross is never under such an obligation. This is important, as the International Red Cross cannot fully realize all obligations states have with regard to missing persons – for example, if the person went missing because of a human rights violation, it cannot investigate and prosecute. In fact, the ICRC explicitly differentiates its actions from legal obligations by taking, what the organisation calls the ‘humanitarian approach’. For example, ICRC officials have asserted that referencing law would make access to affected populations more difficult, because ‘this would transform an “act of generosity” on the part of combatants into a legal obligation’.

Here we illustrate states’ attempts to shift their legal obligations to the International Red Cross by relying on statements made during their dialogue with UN treaty bodies. States who have ratified a particular UN human rights treaty are expected to report to the treaty bodies on their fulfilment of their Convention obligations. It is as part of this reporting process that the dialogue with UN treaty bodies arises. 

For example, when the Committee on Enforced Disappearances requested in 2021 from the government of Mali to list specific measures it has taken to investigate the deaths, identify and repatriate the bodies of missing migrants, and support their relatives, the authorities referred to the actions of non-governmental organisations, including the ICRC. Similarly, in 2021, Greek authorities were asked whether and how they were identifying and returning the remains of disappeared migrants, yet the authorities did not explain their actions in relation to these. They also refrained from arguing that identifying and returning remains of missing migrants is not their legal obligation under the ICPPED. Instead, Greece noted in its report that relatives of missing migrants ‘may use the services of the Red Cross’ and that the ‘Red Cross can also undertake to locate the remains of victims’ so that they will be returned to their relatives. Finally, in their dialogue with UN treaty bodies, States have regularly referred to trainings provided by the ICRC (see for example responses by Niger and Mexico), as well as of the role of the Red Cross in setting up missing persons databases (see for example responses by Bosnia and Hercegovina and Mexico). Also, relevant here is the fact that several states have reported that protocols and procedures adopted by them have been ‘endorsed by the ICRC’. Therefore, while specifically tasked with reporting their actions in relation to their legal obligations, States often refer to activities that have been undertaken, not by them, but by the International Red Cross movement.

In these instances, the states have never formally relegated their obligations to the International Red Cross movement. Even if they had, they would still be under an obligation to monitor and possibly regulate that actor, and make sure to meet their own obligations in the end. In the case of missing persons, one of the key obstacles to meeting these obligations would be the securing access to legal remedies, which states need to provide.

Consequences of Attempting to Shift Obligations 

Attempting to shift state responsibilities to the International Red Cross movement gives rise to two detrimental consequences. First, it diminishes the obligations of states as duty bearers. Had states attempted to shift responsibility to another state – which in many circumstances, such as when persons go missing during international conflict or while on the move, this would have been possible and, in fact, has also been attempted – this would have been less of a problem for the victims because another duty bearer would have had a legal obligation to act. However, shifting the responsibility to an international actor that does not have the responsibility to act in the first place – and only does so on humanitarian grounds – closes avenues to the victims to demand from the state that it complies with the international conventions it is a party to. Thus, what the states seem to imply in their dialogue with UN treaty bodies, namely that it does not matter who responds to the needs of missing persons and their families as long as someone does, is incorrect.

The second, and related, consequence of attempting to shift responsibilities to the International Red Cross movement is that it undermines the rights of missing persons and their families. This is because state obligations vary depending on the circumstances in which a person went missing or disappeared. As the International Red Cross acts, in the area of missing persons, not based on legal obligations, but humanitarianism, it does not differentiate between different groups of missing persons. Thus, depending on the context, its actions may – or may not – exhaust state obligations. For example, the purely humanitarian response to missing persons after a volcanic eruption provided by the International Red Cross, can indeed replace the actions of a state. Conversely, after the humanitarian actions of the Red Cross and Red Crescent movement with regard to missing persons who were forcibly disappeared, states are still required to conduct criminal investigations, punish perpetrators and provide reparation to the families. If a state is satisfied that humanitarian assistance has been provided by the International Red Cross and takes no further action to comply with its additional legal obligations, it leaves forcibly disappeared persons and their families without a remedy.

In the above-mentioned examples of states reporting to UN treaty bodies, one would expect the UN treaty bodies to address this apparent challenge and request the states for information about their action with regard to missing person, how they monitor the actions of the International Red Cross and assure that families have access to legal remedies. Yet, this is generally not done.

In Conclusion: A Need to Cooperate Without Shifting Obligations

As the International Red Cross has immense experience and know-how on missing persons, it is reasonable for states to seek to cooperate with it. This is even more pertinent when the states’ resources are limited, which is the case for many post-conflict countries, as well as countries which major routes of irregular migration pass through – both are contexts in which we see high numbers of missing persons. However, while the International Red Cross can conduct effective search, and provide trainings and families with psycho-social support, its activities cannot exhaust state obligations concerning missing persons. It is states, and not the International Red Cross, which have an obligation to conduct investigations, prosecute perpetrators, and provide reparation to families. Thus, while cooperation between states and the International Red Cross movement is often the most effective way of addressing missing persons, the tendency of states to portray the movement as the leading (or, often, the only) actor in this collaboration, must be identified and avoided.

Consequently, this case study shows the challenges of the move beyond state-centric and legal approaches to accountability. Certain obligations, particularly concerning investigations or actions by the judiciary, belong exclusively to the state; opting for alternative accountability mechanisms, therefore, might lead to diluting these obligations.

Authors’ notes: The authors are listed in alphabetical order.

This blog article is part of a larger research project undertaken by the authors, which also analyses other material, such as the Global Compact on Migration and case law from the European Court of Human Rights. The broader project examines states’ obligations in two specific contexts: currently, missing migrants in the Mediterranean, and, historically, those who went missing between 1963 and 1974 during the violent conflict in Cyprus. The authors are happy to be contacted to share their findings in relation to the broader project.