Introduction
Archives play a crucial role in processes of transition, particularly in situations where societies go through processes that are commonly referred to as “transitional justice”Footnote 1 or “dealing with the past”.Footnote 2 Archives are a fundamental basis for the work of so-called “dealing with the past” (DWP) mechanisms, the institutions and measures that aim at helping societies to cope with a past which is marked by violence, dictatorship and massive human rights violations. Depending on the national and at times international political context, a broad range of specifically established mechanisms and sometimes ordinary constitutional institutions contribute to this difficult task: DWP mechanisms thus include fact-finding and truth commissions; international, hybrid or domestic courts; reparations programmes; procedures to demobilize and reintegrate armed actors; and institutional reforms. As the search for missing persons is considered a fundamental part of dealing with the past, entities mandated to search for missing and forcibly disappeared persons are also considered DWP mechanisms.Footnote 3
All DWP mechanisms both use and produce archives, which often contain relevant information related to the search for missing persons, irrespective of whether it is part of their mandate to determine the fate of missing persons. For instance, one of the first truth commissions, the National Commission on the Disappearance of Persons (Comisión Nacional sobre la Desaparición de Personas, CONADEP) in Argentina, had the mandate to clarify the fate of persons that were forcibly disappeared during the military regime between 1976 and 1983.Footnote 4 Other truth commissions with a broader mandate than CONADEP followed and carried out substantial, sometimes even forensic investigations into the fate of disappeared persons.Footnote 5 Those commissions produced important archives that can be used by subsequent bodies to further investigate missing persons cases.
This article argues that access to archives is crucial for the search for missing persons, and that therefore archives containing such information must be preserved for the future and must be accessible to mechanisms mandated to search for missing persons. After briefly presenting the basic concepts relevant to the topic, the article will discuss issues around access to archives (particularly State archives), analysis of archival information and how such archival material is used in DWP processes with a view to resolving missing persons cases. Subsequently, the international standards on missing and forcibly disappeared persons relevant for documentation and archives will be presented.
Basic concepts
Dealing with the past
In this article, the term “dealing with the past” is used rather than “transitional justice”, as it is broader and emphasizes that transition measures go beyond pure justice measures. The search for missing persons during and after conflict and dictatorial regimes is an important objective of judicial and non-judicial measures that help societies cope with atrocities that were committed in the past.Footnote 6 Coming to terms with past massive human rights violations and dictatorial systems, including enforced disappearances, is a huge challenge for the societies concerned and often takes several generations. Dealing with a painful past is part of a political and social transition process, which generally includes a number of different actors and mechanisms with diverse perceptions of “the past”.Footnote 7 It encompasses processes, mechanisms and institutions that help societies emerging from armed conflict or authoritarian regimes to deal with a legacy of human rights violations and violations of international humanitarian law (IHL).Footnote 8 It is argued that dealing with a past which is marked by massive violence should be a “necessary precondition for the establishment of the rule of law and the pursuit of reconciliation”.Footnote 9 The search for missing persons is often an important first step in such a process and the immediate priority for relatives and victims, the quest for justice being secondary in many contexts.Footnote 10 IHL and human rights law recognize that family members have an “imprescriptible right to be informed of the fate and/or whereabouts of the disappeared person”.Footnote 11 While the task of a missing persons commission focuses on the search for individual persons, other DWP mechanisms, such as truth commissions, have a much broader mandate to investigate not only individual human rights violations but also the larger historical, political and conflict context in which they occurred.Footnote 12 Nevertheless, a number of truth commissions in the past had the explicit mandate to investigate the fate of missing persons.Footnote 13
Missing persons and victims of enforced disappearance
Different definitions of the term “missing persons” can be found in policy and practice.Footnote 14 Though there are both narrower and broader definitions of the term, this article uses the wide definition developed by the International Committee of the Red Cross (ICRC), whereby a “missing person” is
a person whose whereabouts are unknown to his/her relatives and/or who, on the basis of reliable information, has been reported missing in accordance with national legislation in connection with an international or non-international armed conflict, a situation of internal violence or disturbances, natural catastrophes or any other situation that may require the intervention of a competent State authority.Footnote 15
This includes a range of different sub-groups, including persons who may have died as well as living persons and children separated from their families. For example, persons who may have been killed and unaccounted for in combat or in detention are considered missing because their families do not know where they are.
The applicable international and domestic legal framework varies depending on the context and specific case: while the norms and principles enshrined in IHL apply to situations in which persons have gone missing in the framework of international and non-international armed conflicts, the provisions set out in the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED)Footnote 16 envisage situations in which persons have been subjected to enforced disappearance, whether in peacetime or in war. The ICPPED defines enforced disappearance as
arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.Footnote 17
Under certain circumstances, enforced disappearances can also be committed by non-State actors.Footnote 18
Many of the international principles aimed at preventing persons from going missing or determining the fate and whereabouts of persons were developed in the case law of international human rights monitoring bodies in cases of enforced disappearancesFootnote 19 and enshrined in legal instruments addressing enforced disappearance.Footnote 20 As enforced disappearance is considered one of the most atrocious violations of human rights committed during armed conflicts or by repressive regimes,Footnote 21 it usually receives a great degree of attention in DWP processes. Notwithstanding, the families of persons who have gone missing for other reasons – for example, as a result of indiscriminate actions in combat – also have the right to know what happened to their loved ones and for the acts in question to be properly investigated.Footnote 22 Therefore, the analysis in this article refers to “missing persons” as the broader category of cases relevant in DWP processes. Where considerations are solely relevant to cases of enforced disappearance, this will be explicitly stated.
Archives and dealing with the past
Archives, as long-term holders of information, can play an important role in DWP processes because they can form the basis for the creation – as well as the contestation – of narratives within a society on what happened in the past. Scholars and practitioners assume that finding a commonly accepted narrative about past events enhances reconciliation, particularly if this narrative can be conveyed and communicated to younger generations.Footnote 23 Such narratives may change over time as a society's or parts of a society's perception of past injustices changes.Footnote 24 However, if the basis for the creation of narratives of the past does not exist anymore or is not accessible – for example, in the form of archives – there is an imminent danger that myths of the past will emerge, that past injustices will be denied or that history will be manipulated.Footnote 25
The term “archive” describes “[m]aterials created or received by a person, family, or organization, public or private, in the conduct of their affairs and preserved because of the enduring value contained in the information they contain or as evidence of the functions and responsibilities of their creator”.Footnote 26 This definition highlights an aspect of particular relevance in DWP processes: archives are produced not only by State institutions but also by non-State actors, such as individuals or non-governmental organizations. Despite the definition referring to the elements of “enduring value” of the information and “evidence of the functions and responsibilities”,Footnote 27 when dealing with serious violations of human rights and IHL, it becomes clear that archives are not necessarily reliable custodians of a factual and presumably objective truth.Footnote 28 This is particularly true for enforced disappearances, which represent a particular category of missing persons, as described above. In cases of enforced disappearance, records often contain false information as cases were documented incorrectly in order to disguise the true fate of the victim. The purpose of such fabrications is to ensure that relatives and authorities stop looking for the disappeared person or are misled in their search.Footnote 29 As Kaplan emphasizes,
the pervading view of archives as sites of historical truth is at best outdated, and at worst inherently dangerous. The archival record does not just happen; it is created by individuals and organizations, and used, in turn, to support their values and missions, all of which comprises a process that is certainly not politically and culturally neutral.Footnote 30
In the field of dealing with the past, particularly in the search for missing persons, it becomes evident that archives are part of a political system, established and controlled by the regimes in power to enhance their position and to control – and if necessary to hide and manipulate – history and information about past events.Footnote 31 Despite these considerations, experiences of DWP mechanisms dating back to the Nuremberg TrialsFootnote 32 and the truth commissions established in the 1980s in Latin America show that access to archives is crucial in the aftermath of gross human rights violations and serious breaches of IHL, in particular for mechanisms with a mandate to search for missing persons.Footnote 33 The right to know, to justice and to reparations, as well as guarantees of non-recurrence, can only be rendered if credible documentation of past violations exists.Footnote 34
Access to and use of archives by DWP mechanisms
The importance of archives for the work of DWP mechanisms cannot be underestimated. Archives can provide invaluable information for determining the fate and whereabouts of missing persons, both for specific missing persons mechanisms and for other DWP mechanisms mandated to address missing persons issues.Footnote 35
At the end of the Cold War, when many authoritarian regimes were dissolved and replaced by democratic systems, many societies in transition had to decide what should happen to the archives of the repressive regimes.Footnote 36 In many countries, there were intense discussions on whether these “archives of terror”Footnote 37 should be kept or destroyed.Footnote 38 Today it is widely accepted that destroying such archives would constitute another violation of the rights of victims and their families, and more largely of the entire society's right to know.Footnote 39
Access to archives
In practice, DWP mechanisms face many challenges with regard to the use of archives. Those who collect and safeguard important information for DWP processes, especially non-State actors, often lack the resources and expertise to archive and preserve such documentation in a professional and safe manner.Footnote 40 In addition, official documents that could be used as evidence by DWP mechanisms are often in danger, particularly when they remain in the hands of those who committed crimes. In many instances, important evidence has been destroyed,Footnote 41 or hidden from DWP mechanisms.Footnote 42 Destruction often occurs when regime changes are in sight and those holding relevant and potentially incriminating information realize that the archival material they had meticulously collected over decades could be used as evidence against them in judicial proceedings or by truth-seeking bodies.Footnote 43 Many if not most DWP mechanismsFootnote 44 face the problem that many relevant documents are not accessible during their temporary mandate, either because they have been destroyed or are not accessible for other reasons.Footnote 45 For instance, the Truth and Reconciliation Commission of Canada describes in detail the problem of obtaining access to State archives related to missing children in Indian Residential Schools.Footnote 46 Similarly, researchers accessing the archives of security forces often encounter difficulty because the related records management systems are set up in such a way that only members of the security service can understand and handle them.Footnote 47 This is particularly true for archives of repressive regimes.Footnote 48
As a consequence of the difficulty involved in accessing official archives, many DWP mechanisms, including those concerned with the fate of missing persons, have had to rely on oral testimonies and on other sources, such as civil society archives. First-hand information collected from victims, survivors and witnessesFootnote 49 is an important basis for the work of most DWP mechanisms. These include mechanisms that are mandated to search for missing persons;Footnote 50 those conducting judicial investigations and prosecutions; mechanisms mandated to determine and provide reparations, restitution and compensation; disarmament, demobilization and reintegration programmes;Footnote 51 and mechanisms for conducting vetting processes. The Instance for Truth and Dignity (Instance Vérité et Dignité, IVD) in Tunisia, as an example, has collected 62,713 files from victims in Tunisia during its four-year mandate and carried out 49,637 hearings.Footnote 52 CONADEP in Argentina carried out meticulous inspections of clandestine detention places, together with witness interviews. These protocols were then compiled with other documentation about the detention centres, forming a “dossier” to be submitted to the courts.Footnote 53 However, only if such statements have been collected in a coherent manner and in accordance with certain standards can they be used by such mechanisms.Footnote 54
As the design and implementation of any successful DWP initiative demands the gathering of relevant data, interesting developments can be noted with regard to how more recent mechanisms use archives in their work and how they plan the transfer of their own archives to permanent institutions in advance. Several mechanisms have been provided with a stronger legal basis for accessing and using the archives of other institutions than their predecessors.Footnote 55 The legal basis of a given mechanism – be it in a transitional justice law, in a presidential decree, or in any other form depending on the domestic legal framework – should provide for unlimited access to archives.
The so-called Joinet Principles against impunity, drafted in 1996Footnote 56 and updated by Diane Orentlicher in 2005,Footnote 57 are considered to be a milestone in the conceptualization of transitional justice.Footnote 58 They recognize the importance of preserving archives and facilitating access in order to guarantee the right to know and to “enable victims and their relatives to claim their rights”. Moreover, the Joinet Principles acknowledge that access to archives “should also be facilitated in the interest of historical research”, emancipating the right to truth from a narrow individual conception and giving it a collective sense.Footnote 59 Although the Joinet Principles are considered to be soft law,Footnote 60 they are, at least partially, reflective of existing international “hard” law.Footnote 61
Understanding what archives are available to be used in a DWP process is an essential first step in assembling information and material to be used by missing persons commissions, truth commissions, fact-finding bodies, tribunals and other mechanisms that help a society cope with a past troubled by violence, dictatorship and armed conflict. However, especially in contexts of transition, accessing archives containing relevant information regarding missing persons is usually not straightforward. For instance, access to State security archives has even been denied to State-sponsored truth-finding mechanisms tasked with addressing the fate of missing persons, such as the truth commission in Argentina, CONADEP,Footnote 62 or more recently in Peru, Guatemala and East Timor.Footnote 63 Denial of access to archives does not necessarily indicate that the records were destroyed,Footnote 64 but this is often provided as an excuse for denying access. Other reasons for denial include State securityFootnote 65 or problems in document production.Footnote 66 DWP mechanisms are often not informed about the existence of relevant archives. Thus, in several contexts, military and police archives containing relevant information with regard to missing persons were discovered decades after the end of a dictatorship or an armed conflict, and after the truth commissions had ended its work, for instance in Paraguay,Footnote 67 GuatemalaFootnote 68 and Argentina.Footnote 69
As a result of the difficulties involved in gaining access to relevant State archives, accessing civil society archives was crucial for many truth commissions.Footnote 70 Truth commissions also tried to access the archives of third States. Accessing foreign records has proven difficult, in particular where the archives of security services were concerned.Footnote 71
Special powers to access archives
There are examples of DWP mechanisms that have received special powers to access important State documents and archives, such as the South African Truth and Reconciliation Commission, which was provided with quasi-judicial subpoena powers,Footnote 72 and the Tunisian IVD.Footnote 73 The IVDFootnote 74 has unlimited “access to public and private archives” and can investigate human rights violations as stipulated in the law, “using all the means and mechanisms it deems necessary while ensuring the defense rights”.Footnote 75 The IVD can further carry out “inspections in private and public places as well as searches and confiscate documents, movables and tools used in relation to the violations [that are the] subject of its investigations”, and is therefore “empowered with the powers of judicial police taking into account the necessary procedural safeguards in this regards”.Footnote 76 Similarly far-reaching powers can be found in the constituting documents of other truth commissions. Article 8 of the Sierra Leone Truth and Reconciliation Commission Act (2000)Footnote 77 vested the Sierra Leonean Truth and Reconciliation Commission with specific powers, namely “to gather, by means it deems appropriate, any information it considers relevant” and “to request reports, records, documents or any information from any source, including governmental authorities, and to compel the production of such information”.Footnote 78 As another example, in Canada, the Ontario Superior Court of Justice determined in 2014 that the federal government was required to compile all relevant documents with regard to missing children for the Truth and Reconciliation Commission.Footnote 79
When institutions or organizations engage in the search for missing persons, the archives of previously existent DWP mechanisms are crucial, because they include public and confidential material that could contain relevant information as a starting point for further investigations or even an answer to unresolved cases.Footnote 80 As an example, in the Balkans, the ICRC received special access to the archives of the International Criminal Tribunal for the former Yugoslavia and other international organizations in its search for missing persons.Footnote 81 The Law on Missing Persons in Bosnia and Herzegovina even foresees punitive measures if access to information relevant for tracing a missing person is hindered.Footnote 82 For mechanisms specifically created to search for missing persons, the power to access archives or receive information from government or non-government archives is often not that explicit. For instance, the International Commission on Missing Persons (ICMP) – which is not a transitional justice mechanism in the narrow sense, but an international organization established by a multinational treaty in 2014, with the humanitarian mandate to locate and identify persons “missing [as a result of] conflict, human rights abuses, disasters, organized crime, irregular migration and other causes”, and to assist States in doing soFootnote 83 – has general powers to take “lawful action necessary to accomplish the purpose of the Commission”.Footnote 84 This general provision assumedly includes legal action to obtain access to archives. The question of whether these special powers are sufficient to grant access to State or private archives depends on the legal basis on which the ICMP operates in a specific context, mainly the agreements concluded with governments,Footnote 85 as well as the applicable domestic legislation in this context, such as archive laws and freedom of information legislation. A careful analysis of the existing legal framework is therefore recommended, as well as the conclusion of agreements that grant access to State and non-State records and archives.
Use, processing and handling of archival material
DWP mechanisms, including missing persons mechanisms, mostly have temporary mandates and limited capacities to process the large quantities of material that are needed to fully implement their mandates.Footnote 86 They face the immense task not only of gathering information on past human rights violations and breaches of IHL from victims and from other sources, including State and non-State archives, as described above, but also of processing this data and often of producing a report with recommendations. For instance, the South African Truth and Reconciliation Commission had the enormous task of processing 21,298 statements taken from victims, “containing 37,672 gross violations of human rights”.Footnote 87
Model legislation regarding missing persons recommends that such information about missing persons is kept “in a centralized institution, to give a coherent overview of the scope of the problem, to assist with the location of the missing person and to give a reference point to other authorities, including foreign authorities”.Footnote 88 Such central registers should contain all the information that is relevant for the search for missing persons and should be kept according to international archival standards, in particular with regard to security, data protection and documentary preservation.Footnote 89 Special technical and legal provisions apply for DNA databases.Footnote 90 Ideally, these records should be kept in a governmental institution, as for example in Bosnia and Herzegovina at the Missing Persons Institute.Footnote 91
The work of the Argentine Forensic Anthropology Team (Equipo Argentino de Antropología Forense, EAAF), as an NGO that uses forensic science to investigate serious human rights violationsFootnote 92 – namely, enforced disappearance cases in Argentina and worldwide – with a humanitarian approach, shows how archives can be used in a systematic manner in the search for missing persons. In Argentina, the EAAF gained access to police archives through judicial measures in the late 1990s and used archival material systematically to identify persons who were disappeared during the military regime, using a humanitarian approach. It used numerous written sources that were established during the military dictatorship in the course of the bureaucratic procedures by the army and the police to disguise the thousands of cases of enforced disappearance in the years from 1976 to 1983. The EAAF created several databases where all the information collected from archives, reports and testimonies was entered (e.g. from death certificates of unidentified persons, testimonies from family members or former detainees, and police reports). “The death certificates were taken from the 1976, 1977 and 1978 registration books from the counties in the province of Buenos Aires that surround the Buenos Aires city limits”, and in total around 3,319 death certificates were entered in 1998 alone.Footnote 93 The fact that the police had accurately recorded the crimes they had committed and had archived this information systematically helped the EAAF to identify missing persons almost two decades later. The consequence of this is that the families of the victims can finally know what happened, receive the remains, carry out funeral rites and mourn their dead.Footnote 94
Similarly, the Committee on Missing Persons (CMP) in Cyprus, established in April 1981 by an agreement between the Greek Cypriot and Turkish Cypriot communities under the auspices of the United Nations (UN), employs an archival team to guarantee the professional management and preservation of the documents and information obtained in the framework of the procedures to exhume and identify the bodies and to return the remains to the families.Footnote 95
Linking professional physical archives with a functioning database that allows for quick access to pertinent information, both in digital and physical form, is a complex and time-consuming task that requires cooperation between different professionals, ranging from experts on the contexts to be investigated, to archivists and information technology experts.Footnote 96 Databases need to be tailored to the specific task of the mechanism in question. Thus, the means of establishing specific databases that allow for the collection, cross-checking and corroboration of information depend on the specific mandate of the mechanism in question. Organizations searching for the fate and whereabouts of missing persons use complex databases fed with information from a number of sources, including material collected in archives. In order to facilitate the identification of missing persons, not only forensic procedures should be documented, but also the work undertaken with family members and communities.
Archives as part of the legacy of DWP mechanisms
DWP mechanisms necessarily collect, produce and use archival material from the beginning of their mandate. The collected and created records relate both to their administrative procedures and to their substantive work, including investigations, adjudication, truth-seeking, truth-telling, reparations and memorialization. They usually receive large amounts of material, for instance in the form of submissions by direct victims or family members, and they create their own records.Footnote 97 Other records may include written and oral forms of testimony from victims, witnesses, experts and accused perpetrators; the minutes of public hearings and meeting notes; and reports and recommendations.Footnote 98 The final outputs of DWP mechanisms, including judgments of tribunals, published final reports of truth commissions, conclusions and recommendations, reparation decisions, and similar outcome documents, often consist of several hundred pages, which also belong to the records created by the mechanisms. Despite their length, these final and published documents usually present a very condensed version of what is contained in the wealth of archival material that has been collected and produced by such mechanisms.Footnote 99
The amount of material which DWP mechanisms receive and collect from individuals, non-governmental institutions and State bodies is enormous. These records can be of various types, including paper and electronic documents in different formats and styles, audio and video recordings, photographs, maps, artefacts and even artistic objects. Since such mechanisms typically investigate serious human rights violations and breaches of IHL, the records contain a lot of personal and sensitive information regarding the identity of victims and their families, presumed perpetrators, informants and witnesses. As these records constitute the basis upon which judgments and findings are rendered, the fate of missing persons is investigated, recommendations are formulated and reparation decisions are taken, their professional appraisal and preservation is crucial.Footnote 100 This is particularly important because tribunals, courts, truth commissions and reparations programmes establish social, institutional and individual responsibilities and decide upon the future of individuals. In addition, the work of such mechanisms is by its nature contested and controversial, particularly in contexts where those responsible for human rights violations are still in power.
State obligations relevant for archives and missing persons
The international legal framework on enforced disappearance and missing persons reflects the fact that archives play an important role in both the prevention of disappearances and the search for missing persons. In addition, keeping records and providing access to archives are crucial means of implementing the right of family members and society to know about the fate of missing persons. The relevant international instruments, as well as the jurisprudence and domestic legislation, entail three principles which have far-reaching implications for the use of archives: firstly, the right to report when a person has gone missing and the respective duty of the authorities to investigate such reports; secondly, the duty to keep records of places of detention; and thirdly, the duty to provide access to the archives.
Right to report and duty to investigate missing persons cases
Both IHL and international human rights law include detailed provisions regarding States’ duties to report and investigate missing persons cases. These provisions involve creating and maintaining records, and sometimes even require archival research.
Most of the IHL rules concerning the missing are related to the clarification of the fate and whereabouts of persons in the hands of the enemy or those killed on the battlefield.Footnote 101 During international armed conflicts, Articles 32–34 of Additional Protocol I to the 1949 Geneva Conventions (AP I) stipulate the right of families to know the fate of their relatives and oblige the parties to the conflict to “search for the persons who have been reported missing by an adverse Party” and to “transmit all relevant information concerning such persons in order to facilitate such searches”. Analogous duties have been found applicable under customary law during non-international armed conflicts: the ICRC Customary Law Study establishes that “each party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate”.Footnote 102
The ICPPED sets out the responsibility of States to “ensure that any individual who alleges that a person has been subjected to enforced disappearance has the right to report the facts to the competent authorities, which shall examine the allegation promptly and impartially and, where necessary, undertake without delay a thorough and impartial investigation”.Footnote 103 This provision can be interpreted as implying that the respective authorities also have to create files when individuals allege that an enforced disappearance has occurred. Such files can provide relevant information in determining the fate and whereabouts of missing persons. In addition, a proper investigation into a disappearance case necessarily requires archival research, meaning investigations both into archives that are still in use – so-called active or intermediary archives – and into archives that are no longer in active use. As a consequence, paragraph 3 of said provision expressly states that the authorities must have “access to the documentation and other information relevant to their investigation”.Footnote 104
Duty to keep archives of places of detention
Proper record-keeping – particularly in the context of places of detention, due to the vulnerability of detainees – is an important element of the prevention of enforced disappearances, and can assist in clarifying the fate of a person in the event that he or she does go missing. This basic rule to protect persons deprived of their liberty in armed conflict derives both from treaty lawFootnote 105 and from customary IHL applicable in international and non-international armed conflicts, and states that “personal details of persons deprived of their liberty must be recorded”.Footnote 106 This rule is usually also contained at the domestic level in military manualsFootnote 107 and national legislation.Footnote 108 Under IHL, there is also a requirement to keep archives related to the dead.Footnote 109
Similarly, States party to the ICPPED are under the obligation to “assure the compilation and maintenance of one or more up-to-date official registers and/or records of persons deprived of liberty”.Footnote 110 Further, such records must “be made promptly available, upon request, to any judicial or other competent authority or institution authorized for that purpose”.Footnote 111 Registers must contain at a minimum the identity of the person deprived of liberty, the date, time and place where the person was deprived of liberty, and the identity of the authority that made the arrest. The information must also include the authority that ordered the deprivation of liberty and the grounds on which it was ordered, as well as the authority responsible for supervising the deprivation of liberty.
The most important information for the search for persons who go missing in detention is the indication of the place of deprivation of liberty, the date and time of admission to the place of deprivation of liberty, the authority responsible for the place of deprivation of liberty, the date and time of release or transfer to another place of detention, the destination of the transfer, and the authority responsible for the transfer, as well as, in the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the remains.Footnote 112 Article 22 of the ICPPED provides for the State's responsibility to “take the necessary measures to prevent and impose sanctions for” the “[f]ailure to record the deprivation of liberty of any person, or the recording of any information which the official responsible for the official register knew or should have known to be inaccurate”. Such punitive provisions are important to ensure the implementation of the obligation to document detention.
Duty to provide access to archives
It is widely recognized today that States are obliged to provide access to information related to past IHL and human rights violations both on the basis of the “right to know”Footnote 113 and within the larger framework of remedies for human rights violations. The ICPPED thus states that States Parties shall guarantee to any person with a legitimate interest in this information, such as relatives of the person deprived of liberty, their representatives or their counsel, access to at least the following information:
(a) The authority that ordered the deprivation of liberty;
(b) The date, time and place where the person was deprived of liberty and admitted to the place of deprivation of liberty;
(c) The authority responsible for supervising the deprivation of liberty;
(d) The whereabouts of the person deprived of liberty, including, in the event of a transfer to another place of deprivation of liberty, the destination and the authority responsible for the transfer;
(e) The date, time and place of release;
(f) Elements relating to the state of health of the person deprived of liberty;
(g) In the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the remains.Footnote 114
In order to “balance between the protection of persons from enforced disappearances on the one hand and the right to privacy and constraints imposed on states in the context of criminal investigations on the other hand”,Footnote 115 this right to information can be restricted only under certain conditions: it must be guaranteed that the person deprived of liberty remains under the protection of the law, and that the restriction is of an exceptional nature, is strictly necessary and is provided for by the law.Footnote 116 The right to a remedy to obtain this information cannot be restricted.Footnote 117
Underlining the importance of correct procedure when collecting and processing personal information, the ICCPED also highlights that the privacy rights of the persons concerned have to be respected: personal information, including medical and genetic data, which is collected and/or transmitted within the framework of the search for a disappeared person shall not be used or made available for purposes other than the search for that person.Footnote 118 The ICCPED does not provide specific access rules for missing persons mechanisms or other DWP mechanisms, but in the ambit of soft law, a number of international instruments do address these specific questions, as described below.
Despite the narrow definition of the exceptions to the right to information in the ICCPED, in practice the problem remains that States do not want to reveal certain information, arguing its relation to State security.Footnote 119 As referred to above, many truth commissions have thus had difficulties accessing records concerning State security.Footnote 120 Therefore, domestic policies on freedom of information and access to public information are highly relevant in this regard. Although issues of State security as well as access to information and freedom of information very much depend on domestic legislation and the context in which DWP mechanisms operate, international standards such as the Global Principles on National Security and the Right to Information (Tshwane Principles),Footnote 121 the Model Inter-American Law on Access to Public InformationFootnote 122 and the 2009 Council of Europe Convention on Access to Official DocumentsFootnote 123 provide orientation.
The Tshwane Principles were developed by experienced academics and practitioners. They were not adopted within the UN system, but were developed in consultation with UN, Organisation of American States (OAS) and African Union Special Rapporteurs on freedom of expression. They are not legally binding but aim at providing
guidance to those engaged in drafting, revising, or implementing laws or provisions relating to the state's authority to withhold information on national security grounds or to punish the disclosure of such information. They are based on international (including regional) and national law, standards, good practices, and the writings of experts.Footnote 124
The Tshwane Principles underline that there are “some categories of information” that
are of particularly high public interest given their special significance to the process of democratic oversight and the rule of law, including categories related to missing persons. Accordingly, there is a very strong presumption, and in some cases an overriding imperative, that such information should be public and proactively disclosed.Footnote 125
They go on to state that principally, there is
an overriding public interest in disclosure of information regarding gross violations of human rights or serious violations of international humanitarian law, including crimes under international law, and systematic or widespread violations of the rights to personal liberty and security. Such information may not be withheld on national security grounds in any circumstances.Footnote 126
This type of documentation often entails material that is relevant to clarifying the fate and whereabouts of missing persons, in particular cases of enforced disappearance. With a view to DWP processes in States undergoing political transitions, Principle 10 of the Tshwane Principles notes that “a successor government should immediately protect and preserve the integrity of, and release without delay, any records that contain such information that were concealed by a prior government”.Footnote 127 This principle is very important in the search for missing persons in general and in particular regarding enforced disappearance, as especially in the latter cases the information is often systemically concealed.
The Model Inter-American Law on Access to Public Information, which was adopted in 2010 by the General Assembly of the OAS,Footnote 128 is based on the principle of maximum disclosure, “so that all information held by public bodies is complete, timely, and accessible, subject to a clear and narrow regime of exceptions set out in law that are legitimate and strictly necessary in a democratic society”.Footnote 129 The Model Inter-American Law is clear that the exceptions to disclosure “do not apply in cases of serious violations of human rights or crimes against humanity”.Footnote 130 This leads to the conclusion that investigations into enforced disappearance cases, whether by a judicial investigation, truth commission or missing persons mechanism, could not be impeded by referring to the exceptions for disclosure. This does not cover all missing persons cases, however.
The organs of the Inter-American system have highlighted the importance of access to information and to archives, emphasizing “that victims and their relatives, as well as the society as a whole, have the right to access information on serious violations of human rights in the archives of the State”, even those of the security sector.Footnote 131 In the case of Gomes Lund et al. v. Brazil, the Inter-American Court of Human Rights (IACtHR) held that
it is essential that, in order to guarantee the right to information, the public powers act in good faith and diligently carry out the necessary actions to assure the effectiveness of this right, particularly when it deals with the right to the truth … in cases of gross violations of human rights.Footnote 132
The most important finding of the Court in this case was that it is not the institution accused of committing mass human rights violations that should decide whether or not the information exists, and whether or not to make it public. Similarly, a State cannot release itself from its obligations simply by alleging that the required information on mass human rights violations committed in the past was destroyed. On the contrary, the State has the obligation to search for such information by all possible means.Footnote 133
The Council of Europe Convention on Access to Official Documents is the “first binding international legal instrument to recognise a general right of access to official documents held by public authorities”. It also provides a list of exemptions for access to information, but at the same time narrows the scope for abuse by imposing a strict public interest test.Footnote 134 Further, it requires that State officials “preserve and organize records, process requests for information promptly, provide reasons for any refusal, and make available a review procedure by a court or ‘another independent and impartial body established by law’”.Footnote 135 Although the Convention does not refer specifically to mechanisms tasked with the search for missing persons, it nevertheless applies and is important, since it obliges States Parties to take the necessary measures in their domestic law to give effect to the provisions set out in the Convention.Footnote 136 As Article 3 of the Convention proposes the “balancing of interests” when assessing requests to access public information, the interest of finding information about missing persons will most probably prevail.Footnote 137
The instruments above should serve domestic authorities as examples of good practice with regard to access to information in general, and access to records containing information related to the fate of the missing in particular. They should be taken into consideration when specific laws relating to, and agreements with mechanisms tasked with the search for missing persons are drafted.
Conclusions
During times of internal violence or armed conflict, but also in other contexts, many persons go missing or are forcibly disappeared. These cases are of major importance in DWP processes. Documentation and archives of different sources can provide crucial elements in the search for and establishment of the fate of those who are missing. This is critical for the victims who are still alive and for the family members of the victims. However, it is not only the next of kin of the missing persons who have the right to know what happened to their loved ones, but also their community and society as a whole.
In practice, DWP mechanisms, including those focusing on missing persons, encounter difficulties in gaining access to archives. In addition, they sometimes have to work with archives which have not been handled properly or have been partly destroyed. Nevertheless, archives remain critical to the work of DWP mechanisms, and the international standards are clear that authorities have to document, in a detailed manner, information which helps to prevent persons from going missing. This information should only be classified in exceptional circumstances.
In conclusion, the important role of archives in dealing with the past and in particular in the framework of the search for missing persons should be taken into consideration more carefully. This is only possible if State agencies and international organizations, as well as non-governmental bodies such as human rights and victims’ organizations and other civil society actors holding such archives, guarantee their preservation and safeguard. It is also crucial that the mechanisms investigating the fate of missing persons are given privileged and timely access to archives containing information that could support the search for missing persons.
