1. Introduction
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,Footnote 1 the authorities pointed to the action of non-governmental organizations, including the International Committee of the Red Cross (ICRC).Footnote 2 Similarly, when Frontex officials were asked by researchers about the collection of information relating to migrant mortality along Europe’s borders, they too, described this as a task typically undertaken by non-governmental humanitarian organizations.Footnote 3 By far the most influential of these, is the International Red Cross and Red Crescent movement, also known as the International Red Cross. The movement consists of the ICRC, National Red Cross and Red Crescent societies, and the International Federation of the Red Cross and Red Crescent Societies.Footnote 4 This article demonstrates how states attempt to shift their responsibility in relation to missing persons and their families to the International Red Cross and Red Crescent movement and the consequences of this phenomenon.Footnote 5 It should be noted from the outset that this is not a criticism of the movement’s work in the field of missing persons; rather it is a critical assessment of the states’ reactions to this work, and in particular, their attempts to shift their legal obligations.
The article argues that this eagerness to shift responsibility from states to the International Red Cross and Red Crescent movement, firstly, leads to rightlessness of the missing and their families, and secondly, diminishes the obligations of the states, which are the duty bearers. Both consequences are negative developments in terms of the persons concerned. Two case studies, relating to two distinct types of missing persons, are used to illustrate the phenomenon: persons who disappeared in Cyprus between 1963 and 1974, and migrants going missing in the Mediterranean. We argue that these case studies are representative of a broader tendency.
While both international human rights law and international humanitarian law contain provisions relating to the search for ‘missing persons’, the term is not defined and may relate to different types of persons. International humanitarian law applies it to those who went missing during armed conflict or occupation.Footnote 6 Outside of humanitarian law, the term ‘missing persons’ is usually used in a broader way, encompassing all individuals whose whereabouts remain unknown. This is also the perspective of the International Red Cross.Footnote 7 A category of persons that falls within this broader definition is ‘missing migrants’, that is, all those who went missing in migration while being outside of their place of residence. Some missing persons are forcibly disappeared,Footnote 8 meaning that they were deprived of their liberty with the acquiescence or support of a state, which was followed by a refusal to acknowledge the deprivation of liberty and shed light on the individuals’ fate or whereabouts.Footnote 9 Enforced disappearances can occur both during peace time and armed conflict.Footnote 10 Thus, many missing persons in Cyprus and some missing migrants are victims of enforced disappearances.Footnote 11
There is sometimes a transnational element in persons going missing. This is the case with regard to both case studies in this article. There are no doubts about the transnational character in cases of missing migrants as these individuals, by definition, go missing on the move. In Cyprus, many disappearances also have a transnational element, either because some victims had been transferred to Turkey, or because they disappeared in the north of Cyprus, which is currently under the effective control, and therefore jurisdiction, of Turkey.Footnote 12 However, the two types of legal obligations we decided to concentrate our analysis on in this article are straightforward with regard to territorial jurisdiction.Footnote 13 In the context of the right to life, we analyze the obligations of states in the territory where the alleged loss of life occurred.Footnote 14 With regard to enforced disappearances, the article analyzes the obligations of the state that has conducted or is alleged to have conducted the enforced disappearance. Consequently, with regard to missing migrants we focus on states where the remains of migrants are discovered, or on states that are alleged to have committed enforced disappearances; while with regard to missing persons in Cyprus, we look into the obligations of Cyprus and Turkey.
We support our argument by relying on two types of sources. The first are steps taken by states on the international level, specifically the establishment of the Committee on Missing Persons (CMP) in Cyprus, the adopting of UN General Assembly Resolutions, and the Global Compact for Safe, Orderly and Regular Migration (Global Compact on Migration).Footnote 15 Examining actions taken at the international level allows us to focus on a range of different states and how they act jointly, as well as provides support that the phenomenon we identify is not isolated to the actions of a single actor. The second type of source relates to statements made by states at the international level, like state submissions to the European Court of Human Rights (ECtHR) and state responses in the reporting process to UN treaty bodies, namely the Committee on Enforced Disappearances and the Committee against Torture. These statements to international bodies are drafted by, and respond to questions from legal experts. Thus, explicitly shifting responsibility to the International Red Cross, rather than acknowledging that this lies with the state making the submissions, carries more weight than if the same had been done in a domestic forum addressing the general public.
The article is divided into six parts. Section 2 identifies states’ obligations relating to missing and disappeared persons, emanating from the right to life and the International Convention on the Protection of all Persons from Enforced Disappearances (ICPPED). Section 3 introduces the two case studies from which this article draws its evidence: persons who went missing between 1963 and 1974 during the conflict in Cyprus, and migrants who have, more recently, been going missing while crossing the Mediterranean. Section 4 explores the leading role of the International Red Cross in addressing missing persons, while Sections 5 and 6 explore the phenomenon we identify and its consequences in the two case studies. Finally, Section 7 concludes.
2. Selected international legal obligations relating to missing and disappeared persons
Precise obligations in relation to missing persons differ depending on the circumstances of the disappearance (state violence or going missing due to other reasons), the applied areas of international law (international humanitarian law or international human rights law), and – in the case of an armed conflict – its type (international or non-international).Footnote 16 Obligations with regard to missing persons have a long history, as already the Geneva Conventions from 1949 contain many obligations preventing persons from going missing during armed conflict and establishing their fate when they do.Footnote 17 The 1977 Additional Protocol to the Geneva Conventions significantly strengthened those obligations in international armed conflict, as well as required parties to the conflict and humanitarian organizations to be ‘prompted mainly by the right of families to know the date of their relatives’ when implementing provisions concerning missing and dead persons.Footnote 18 Thus, obligations can be owed both to the missing persons and their families.Footnote 19 This holds true also in international human rights law, as courts and UN treaty bodies have recognized families of forcibly disappeared persons as victims of human rights violationsFootnote 20 , which in 2010 was recognized also in the ICPPED.Footnote 21
These obligations arise by virtue of states becoming parties to international legal instruments or through customary law. Thus, while the International Red Cross and Red Crescent movement is an important international actor when addressing missing persons – and, in practice, conducts actions addressing some of these obligations – it is not bound by them. This bears highlighting because a central tenet of our argument is that it is states, and not the International Red Cross, that are duty bearers in relation to missing persons.
Of the many state obligations with regard to missing persons enshrined in international humanitarian and international human rights law, we focus on two: the legal duty to investigate losses of life, and obligations relating to enforced disappearances. These obligations apply irrespectively of whether the persons are residing regularly in the country where they disappeared. We selected the first obligation as it stems from the right to life under provisions of treaties that are widely ratified, such as Article 6 of the International Covenant on Civil and Political Rights, Article 2 of the European Convention on Human Rights, and Article 4 of the American Convention on Human Rights. All the relevant adjudicating bodies have developed an interpretation that there is an obligation to investigate losses of life. Thus, this obligation is currently universally applicable. The second set of obligations arise with regard to those persons who went missing by being forcibly disappeared. The prohibition of enforced disappearances has been found to be a rule of customary international law by international tribunalsFootnote 22 and domestic courts.Footnote 23 It has been recognized as a customary rule under international humanitarian law by the ICRC study,Footnote 24 as well as by several UN commissions of inquiry.Footnote 25 William Schabas also included enforced disappearances as one of the customary human rights norms in his monograph on customary international law of human rights.Footnote 26 Finally, obligations have been codified in the ICPPED. While the ICPPED has not been widely ratified yet,Footnote 27 it can serve as lex specialis.
Neither all missing persons in conflict nor all missing migrants are necessarily 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.Footnote 28 When a loss of life occurs, other than in cases of obvious or natural circumstances, states have a duty to inquire into the causes.Footnote 29 States should conduct an investigation immediately upon receipt of information concerning the disappearance, a time period which the ECtHR has referred to as ‘crucial early days’.Footnote 30 Such an investigation should also be triggered by the discovery of the remains of a person, including when this has occurred long after the disappearance, as in the case of Cyprus.Footnote 31 Crucially, the investigation must be such that, if enough evidence is unearthed, it should lead to the prosecution of the alleged perpetrator. Finally, the families of persons should also be informed about these proceedings.Footnote 32
In addition to the general right to life obligations, particular legal duties arise in relation to victims of enforced disappearance. Before shortly flagging a number of chosen obligations relating to these, let us clarify that when a person disappears, it is not always certain whether this was an enforced disappearance or not. The obligations do not apply only after it has been established that an enforced disappearance, as defined under international law, has, in fact, taken place. States should conduct the search for the persons – or their remains – and support their families in line with this framework, even when the enforced disappearance has not been conclusively established yet.Footnote 33
When enforced disappearances do occur, states are under a number of obligations. For the two case studies analysed in this paper, several obligations appear to be of particular importance. The family of the disappeared person has a right to receive the remains of the person – an obligation not arising when the person disappeared in other circumstances.Footnote 34 Additionally, states are obliged to hold criminally liable those who have attempted, committed, ordered, solicited, or induced the commission of the enforced disappearances.Footnote 35 The same applies to superiors who failed to take necessary and reasonable measures to prevent them.Footnote 36 Any statute of limitations applied to enforced disappearances should be of long duration and take into account the continuous nature of these crimes.Footnote 37 States also have to ensure that individuals have the right to report alleged enforced disappearances.Footnote 38 When there are reasonable grounds to believe an enforced disappearance has taken place, states should undertake an investigation ex officio.Footnote 39 Importantly, all persons who have suffered harm as a direct result of an enforced disappearance, including family members, are considered victims of enforced disappearances.Footnote 40 All victims have the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation, and the fate of the disappeared person.Footnote 41 They, furthermore, have the right to obtain reparation.Footnote 42 Finally, states are under an obligation to cooperate and afford each other the greatest measures of mutual assistance in addressing enforced disappearance cases.Footnote 43
3. Comparing missing persons in conflict and missing migrants
The vast majority of persons who go missing in the world, do so in the two contexts that are discussed in this article: during conflict or while in the process of migrating.Footnote 44 The connections between the two and the impact of the ICRC in both contexts has been acknowledged by the ICRC itself. The ICRC Global Advisor on Migration Issues explained the organization’s involvement in the area of missing migrants by noting that ‘analogies can be drawn with the long-lasting experience of the ICRC in clarifying the fate and whereabouts of persons who went missing in situations of armed conflict’.Footnote 45 This section explains the decision to focus on persons who went missing during the conflict in Cyprus and on migrants who did so while crossing the Mediterranean, respectively. It identifies four similarities and four differences between the case studies, and argues that lessons drawn from these are of interest more broadly.
The choice to focus on those who went missing in Cyprus in 1963–1964 and 1974, is supported by three considerations. First, the international body created to respond to missing persons in Cyprus was set up in 1980; this case study, therefore, offers an early example of the phenomenon discussed here and suggests that shifting states’ responsibility to the International Red Cross is not a recent tendency. Second, the ICRC provides technical support to, and selects one of the three members of, the CMP, the mechanism that exists in Cyprus to respond to missing persons. Finally, while post-conflict states have responded to missing persons through different mechanisms, these mechanisms have generally had humanitarian objectives.Footnote 46 This is also the case with the CMP, which makes Cyprus, in this respect a typical example of how missing persons are addressed in post-conflict contexts.
The second category – missing migrants in the Mediterranean – was selected for analysis for two main reasons. First, since missing migrants, by definition, disappear while on the move, responding to them requires international initiatives. Often these are coordinated by non-governmental organizations that act regionally, or global bodies, like the Red Cross and Red Crescent movement and the International Organization for Migration (IOM).Footnote 47 This is particularly true for the Mediterranean, as several international programmes have been created to specifically address disappearances there.Footnote 48 Second, according to available data, the Mediterranean sea witnesses the deadliest migratory routes in the world,Footnote 49 thus making it an important case study for missing migrants.
As for the similarities between the two case studies, first, in both situations, a big group of persons has gone missing as a result of a single phenomenon (i.e. conflict or migration). However, each individual situation of a missing person might differ, creating varying obligations on the states – for example, some missing persons can be victims of enforced disappearances, thus triggering different obligations. In other cases, no human rights violation or crime may be at the origin of the disappearance. Still, in both instances, the state(s’) response to missing persons has treated all potential victims in the same way. Second, the missing cannot be disconnected from a broader – political – context. In Cyprus, this relates to the continued division of the island; with regard to missing migrants, the broader context concerns state policies that make it almost impossible for vulnerable persons to lawfully cross state borders. Third, as the missing are high in number, there have been initiatives to address them. In both instances, initiatives include different actors, such as states, non-governmental and international organizations. While the actors in each context vary somewhat, a crucial actor that plays a role in both contexts is the International Red Cross. Most emphasis in Cyprus is placed on the CMP, one of the three members of which is selected by the ICRC. Similarly, in the case of missing migrants, the primary role is taken by the Red Cross and Red Crescent movement, IOM, and NGOs. Fourth, to address both missing migrants and persons disappeared in international armed conflict, international cooperation is crucial.
At the same time, there are also differences between the two selected case studies. First, with regard to missing persons in Cyprus, there is extensive ECtHR case law.Footnote 50 Conversely, there is not much case law specifically on missing migrants.Footnote 51 Second, the pressure that exists to address missing persons is different, both in terms of its intensity and source. Addressing persons who went missing during conflict (in Cyprus and elsewhere) is often a priority in post-conflict states, especially since a high number of citizens may have relatives who are victims.Footnote 52 Conversely, as missing migrants and their families carry a lot less political capital, pressure to respond to them is less intense.Footnote 53 Third, how persons went missing or disappeared in the two case studies also differs: in Cyprus this happened as a result of violent conflict, while migrants go missing predominantly because of perilous journeys.Footnote 54 Fourth, while the International Red Cross movement is prominently active in both contexts, its role differs. In the Cypriot conflict, it has a more formalized role, endorsed by the UN to act as a mediator between the two parties and facilitate progress on missing persons. Regarding missing migrants, its role is recognized – it is explicitly mentioned as a cooperation partner in implementing the Global Compact on MigrationFootnote 55 – but it also operates alongside other organizations. These differences between the two case studies suggest that the phenomenon we identify and discuss is a general one.
The comparison between the two case studies points to an important observation that is of interest more broadly: in addressing missing persons, states are taking actions to comply with their legal obligations, but they are not meeting these obligations fully. The most obvious strategy for diverting attention away from their non-compliance or partial compliance with international law would be to point the finger at other state actors and claim that they are the ones who are failing their obligations. Indeed, states have sometimes done this, for example, when Cyprus argued that it is Turkey that is to blame for the failure to identify and return to their families, persons who went missing during the conflict.Footnote 56 Yet, in both of the case studies we explore, it is far more common for states to explain, or even justify, their failure to (fully) comply with international law by pointing, and attempting to shift responsibility, to a non-state actor, such as the International Red Cross. As the numbers of persons who go missing both in conflict and during migration are not set to dissipate, this offers an additional reason for why the consequences of this phenomenon must be understood further.
4. The leading role of the International Red Cross in addressing missing persons
The Red Cross and Red Crescent movements are fundamental in globally dealing with missing persons and have a long history in this regard.Footnote 57 Their role is particularly important in the area of re-connecting families, but in certain contexts, the ICRC (in cooperation with states) also conducts exhumations and identification of remains. For example, in Colombia the ICRC facilitated recovery of remains and their handover to families, as well as the renovation of a morgue, and securing burial sites.Footnote 58 In Greece, it provided training, technical guidance, as well as material support for properly handling human remains.Footnote 59 Furthermore, with regard to migrants missing along the Mediterranean route, the ICRC coordinated among authorities, national Red Cross societies and other organizations to facilitate the proper handling and identification of human remains.Footnote 60 In some contexts, this cooperation is formalized, for example, when Italian authorities signed memoranda of understanding with the Italian Red Cross on collaboration concerning migrants arriving at sea.Footnote 61
The analysis of the UN treaty bodies’ dialogue with states demonstrates that states attach significant importance to the International Red Cross in the area of missing persons. When reporting on their actions concerning missing persons, states regularly referred to trainings provided by the ICRC,Footnote 62 as well as of the role of the Red Cross in setting up databases.Footnote 63 Several states have also reported that protocols and procedures adopted by them have been ‘endorsed by the ICRC’.Footnote 64 This is significant because, in addition to the technical support that the International Red Cross renders, its involvement and cooperation with these states also provides them with legitimacy. As one ICRC official acknowledged, states sometimes use the presence of ICRC delegations as evidence that their practices are in line with international law.Footnote 65
This approach by states is particularly interesting, as in the UN treaty bodies’ dialogue, states are reporting on how their laws, policies and practices are in conformity with the relevant UN human rights treaty. Thus, when states invoke International Red Cross actions in this context, they suggest that these are taken instead of state action. Yet, while the International Red Cross undertakes actions addressing missing persons (it indeed has a mandate under IHL to do so during armed conflictFootnote 66 ), it does not have a responsibility to do so. In fact, the ICRC explicitly differentiates its actions from legal obligations by taking what the organization calls the ‘humanitarian approach’. Human rights law and the language of humanitarianism appear, at first glance, to have common goals – at their most basic, they are both concerned with responding to human suffering.Footnote 67 However, as pointed out by Jean Pictet when outlining ‘The Fundamental Principles of the Red Cross’: ‘One cannot be at one and the same time a champion of justice and charity. One must choose … The ICRC has long since chosen to be a defender of charity’.Footnote 68 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’.Footnote 69 When the International Red Cross steps in to carry out actions concerning missing persons, therefore, it does so based on its humanitarian approach. Despite what they report to UN bodies, state authorities, and not the International Red Cross, ultimately remain responsible for addressing missing persons in line with international law.
By taking actions addressing missing persons, the International Red Cross does not become a duty-bearer. Some of the actions taken by it – for example, providing psychological support to families – are not state obligations under international law. Others – for example, identification of remains after violent losses of lives or providing certain trainings – are. Irrespective of whether a state is obligated under international law to take action, the International Red Cross is never under this obligation. To put it differently, the ICRC might have a mandate to intervene (which is why it often does), but it does not have a legal responsibility to do so. This is reserved for states; crucially, outsourcing the duties of states to the International Red Cross clouds this distinction.
Further, states’ obligations with regard to missing persons differ depending on the circumstances of the missing; for example, states are obliged to take measures to return their remains to the families, only in cases of enforced disappearances.Footnote 70 That is why we are arguing for the need to differentiate between missing persons and forcibly disappeared persons. However, as the International Red Cross acts not based on obligations, but humanitarianism, it does not have to differentiate between different groups of missing persons. The fact that states have different obligations depending on the type of missing persons, means that the International Red Cross actions on missing persons have different effects under different circumstances in each state. For example, the purely humanitarian response to missing persons after an earthquake provided by the national International Red Cross, can replace the actions of a state. Conversely, while the ICRC cooperates with authorities on their criminal responsibilities,Footnote 71 it obviously cannot fully take on this task. Thus, after the humanitarian actions by 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. Equating any actions of the Red Cross and Red Crescent movement in a given state with that state’s compliance under international law can have detrimental consequences for missing persons and their families, as their rights might not be fully protected. These consequences are explored in more detail in the two sections that follow.
5. Missing persons from the Cyprus conflict
In Cyprus about 2,000 persons (1,490 Greek Cypriots and 502 Turkish CypriotsFootnote 72 ) went missing as a result of intra- and inter-state violence that took place during two distinct points in the island’s history.Footnote 73 In 1963–64, intra-state violence (often conducted with the acquiescence of the Cypriot state), resulted in the first missing persons of the conflict. In 1974, a failed coup d’état and the Turkish military invasion of the island that followed produced a second wave of missing persons. Most of the missing persons from 1963–64 and many who went missing in 1974 are, in fact, victims of enforced disappearance.Footnote 74 In addition to ECtHR case law, we also discuss the ICPPED, even though neither Turkey nor Cyprus have ratified the Convention. In doing so, we do not argue that the two countries have legal obligations under the ICPPED. Rather, we contend that both Turkey and Cyprus have often used the existence of the CMP to justify their own inactions; this remains the case whether the CMP responds to legal norms that the two states have to comply with (under the ECHR) or that they do not (under the ICPPED).
In order to address missing persons in Cyprus, the CMP was established in 1981.Footnote 75 The CMP, which the ICRC, as a neutral intermediary, was actively involved in creating from the outset, is a humanitarian body, not one concerned with protecting human rights. This is explicitly stated on its website, which notes that the
CMP does not attempt to establish the cause of death or attribute responsibility for the death of missing persons. Its objective is a humanitarian one, bringing closure to thousands of affected families through the return of the remains of their missing relatives.Footnote 76
The ECtHR has acknowledged the humanitarian objectives of the CMP and accepted that ‘[i]n the context of Cyprus, the task of locating and identifying remains has been delegated by both sides of the conflict to the United Nations Committee on Missing Persons’.Footnote 77 The CMP, in turn, is arguably shaped in its composition and operations by the ICRC. Heading the CMP are three members: one Greek Cypriot and one Turkish Cypriot ‘humanitarian person’ and a third member who is selected by the ICRC.Footnote 78 While the third neutral member is not receiving instructions from the ICRC, they are presumably in agreement with the Red Cross’s philosophy and approach to addressing missing persons. Further, the CMP and ICRC have, over the years, collaborated on a number of occasions. In 2019, the two organized in Cyprus an international expert workshop with 60 participants from 29 countries,Footnote 79 while in 2015, the ICRC recommended two independent experts who investigated a case of misidentification of a missing person by the CMP.Footnote 80 In 2016, the CMP members reaffirmed their intention to continue the Committee’s ‘close cooperation IRCR’.Footnote 81 As the examples suggest, this cooperation is ongoing and regular.
The ICRC’s involvement in the CMP has arguably had an impact on the way the Committee operates. The Terms of Reference of the CMP, which exactly reflect the position of the ICRC, explicitly note that the Committee will not ‘attribute responsibility for the deaths’ or ‘make findings as to the causes of such deaths’;Footnote 82 this is despite the fact that both constitute legally binding obligations. Thus, while the CMP will return the remains of missing persons to their families (an important humanitarian gesture), its refusal to investigate the deaths and send the perpetrators to justice shows a disinterest in meeting international human rights standards.
The ICRC’s influence in shaping the CMP’s activities for meeting humanitarian standards, rather than complying with legal obligations, has not changed over time. For instance, in 2019, the ICRC and CMP co-published an assessment of their work, stating that the objective of the report was ‘exclusively humanitarian’.Footnote 83 In the same report, the ICRC described itself as ‘an impartial, neutral and independent organisation’ with an ‘exclusively humanitarian mission’.Footnote 84 This emphasis on humanitarian standards, rather than the law, is also visible in several UN General Assembly resolutions that encouraged the development of the CMP.Footnote 85 All of them explicitly refer to the ICRC: in 1975, the UN General Assembly ‘appreciat[ed] the work of the International Committee of the Red Cross in this field’; in 1977, it requested the establishment of the CMP ‘with the participation of the’ ICRC; and in 1978, it again urged the establishment of the CMP ‘with the co-operation’ of the ICRC. Yet, none of these resolutions refer to the rights of missing persons or their families, and note instead the ‘basic needs of families to be informed, without delay, about the fate of their missing relatives’,Footnote 86 or ‘the need for a speedy resolution of this humanitarian problem’Footnote 87 (emphasis added by authors).
5.1. The rightlessness of victims
Even though the CMP’s Terms of Reference mention ‘the investigative work of the Committee’ twice,Footnote 88 families of victims cannot ask the CMP to, and the CMP does not actually investigate when there is a violent loss of life.Footnote 89 This is due to three reasons. First, formally, the CMP’s mandate is limited to determining whether or not any of the missing persons on its list are dead or alive.Footnote 90 In practice, the CMP has expanded its mandate and in cases where the person is found dead, it also returns the identified remains to that person’s family.Footnote 91 When the remains are returned, relatives are officially informed about the ‘approximate time of the deaths’,Footnote 92 the location where the body was found, and whether the body had any bullet wounds or bone fractures. Nevertheless, the CMP is explicitly disempowered from determining the causes of the victim’s death or concluding who was responsible for it.Footnote 93
Second, no information from the CMP’s investigative work can be, or has been, used in the courts of Cyprus or Turkey, in either civil or criminal cases relating to missing persons.Footnote 94 In fact, the CMP has been operating with the informal promise that any information it receives will not be shared with the prosecuting authorities.Footnote 95 The CMP’s informal commitment not to assist in the prosecution of any of the perpetrators has been somewhat formalized in a letter by the Attorney General of Cyprus to the international member of the CMP, dated 2 August 1990, noting that he will not prosecute anyone who has cooperated with the CMP, even if that person appears to have been a party to a crime.Footnote 96 This letter has never been challenged in court. It essentially provides complete amnesty to alleged perpetrators who cooperate with the CMP and is, therefore, in contravention to the obligation under the right to life, which requires that effective investigations lead, where possible, to prosecutions. One possible explanation for this is that international law is marred by tensions and seemingly conflicting obligations. While on the one hand, states have a legal duty to locate, identify, and return the remains of missing persons to their relatives, they must also punish the perpetrators. Yet, in practice, often the only way to find the remains is for the perpetrators to share this information, which is unlikely to happen if they know they will be punished for their actions. It is this which makes amnesties both necessary and often accepted by the relatives of missing persons.Footnote 97 While the tension undoubtedly exists, there are ways of working around it, as evidenced by post-conflict societies that have returned the remains of missing persons to their families in the absence of blanket amnesties.Footnote 98
Third, the CMP’s investigative work is not fully compliant with the duty to investigate because its territorial jurisdiction only extends to the island of Cyprus. This is despite the fact that some Greek Cypriots who were detained by Turkish forces in 1974 were taken to Turkey and some of them never returned.Footnote 99 The limited territorial jurisdiction of the CMP is also undermined by the fact that it is, in practice, prevented from undertaking investigations in a large number of areas in the north of the island, which Turkey has declared to be of military significance. The CMP announces from time to time that it has been given access to some of these areas (and, therefore, can now begin investigations), but this happens rarely, slowly and at the sole discretion of Turkey.Footnote 100 Thus, even though victims and their families are, on paper, owed specific protections emanating from the right to life, in practice, the CMP is falling far short of these obligations. This is the outcome of the decision of Cyprus and Turkey to shift their legal obligations to the CMP and, in the process, provide humanitarian relief to the relatives, rather than treat them as right holders. To put it differently, this strategy closes avenues to the victims to demand from the states that they comply with their international legal obligations. Thus, what the states seem to imply, namely that it does not matter who responds to the needs of missing persons and their families as long as someone does, is incorrect.
Since some of the Cypriot missing persons had been arrested, detained and abducted by agents of the state or persons acting with the authorization or acquiescence of the state, they are victims of enforced disappearance. For these persons, under the ICPPED, additional, and more specific protections also apply; yet these, too, remain unfulfilled by the CMP. One response to this criticism could be that non-compliance with legal duties arising from the ICPPED was to be expected, as neither Turkey nor Cyprus have ratified the Convention. The discussion that follows focuses on three ICPPED obligations; all three are, at the same time, legal obligations under the ECHR, which is binding on both countries. Thus, the states’ duties to comply with these remains, irrespective of their decision not to sign (in the case of Turkey) or ratify (in the case of Cyprus) the ICPPED.
First, even when investigations in a given case are concluded, and where information about the disappearance is available and has been requested, the CMP does not fully satisfy the obligation to inform the families of the outcomes of these investigations under Article 18 of the ICPPED. A similar obligation exists under the ECHR. As the Court held in Varnava v. Turkey, an inadequate reaction by the state when a disappearance of a missing person is brought to its attention can result in a violation of inhuman treatment under Article 3 of the Convention. In particular, the Court continued,
The finding of such a violation … can arise where the failure of the authorities to respond to the quest for information by the relatives or the obstacles placed in their way, leaving them to bear the brunt of the efforts to uncover any facts, may be regarded as disclosing a flagrant, continuous and callous disregard of an obligation to account for the whereabouts and fate of the missing person.Footnote 101
The CMP employs Greek Cypriot and Turkish Cypriot psychologists tasked with informing the relatives that the remains of their loved ones have been found and identified.Footnote 102 The relatives are then invited to the CMP’s Family Viewing Facility, where they can see, and are formally given, the remains. At that stage, they also have the opportunity to meet and talk to the group of scientists who worked on identifying their relative’s remains and ask any questions they might have. However, although relatives have rated positively the psychologist’s involvement in the process,Footnote 103 the fact remains that the CMP cannot share any information about the outcomes of its investigations.Footnote 104 Relatives leave without being told about their loved one’s whereabouts between the moments of disappearance and death, without being given information about how the person died, and not knowing who was responsible for this. Additionally, even the information that is shared with the relatives, is disclosed only when the investigations have been fully concluded. This means that approximately half of all relatives have not received any information from the CMP to date, while the rest have been contacted several decades after the disappearance.Footnote 105
Second, despite the right of the victims under Article 24(4) of the Convention to receive ‘reparation and prompt, fair and adequate compensation’, this is not provided for by the states or the CMP. The Committee offers to pay for the funeral of the missing or disappeared person, but this is not in itself compensation and, in any case, it is something that the CMP does on a voluntary basis and could, in principle, stop at any moment.Footnote 106 Additionally, the ECtHR ordered in Cyprus v. Turkey (Just Satisfaction) that Turkey should pay €30 million to the government of Cyprus, an amount that would be distributed to the individual family members who had been identified as victims.Footnote 107 Execution of this 2014 judgment is still pending, and it does not address all families of missing persons – as it only concerns the Greek Cypriot missing.Footnote 108 In fact, over the years, neither Cyprus nor Turkey have paid any money as reparation or compensation to any of the missing persons’ relatives.Footnote 109
Third, Article 15 of the ICPPED provides that state parties shall cooperate and afford each other mutual assistance when searching for and locating missing persons. The ECtHR has confirmed the obligation of states to cooperate with each other in order to fully comply with the procedural obligation under Article 2 (albeit in a context that was not related to missing persons) in the case of Güzelyurtlu v. Cyprus and Turkey.Footnote 110 Cyprus and Turkey have jointly delegated their handling of missing persons to the CMP, thus indicating their will to cooperate on the issue. Yet, the Committee has not always benefited from good cooperation between the parties. While it was established in 1981, the CMP only became operational and identified the first missing person in 2006. During this period, the UN considered the CMP’s dissolution on at least one occasion,Footnote 111 and the CMP itself noted in a press release that it cannot operate without the cooperation of both sides.Footnote 112 Thus, Cyprus and Turkey theoretically met their obligation to cooperate with each other to address missing persons when they jointly formed the CMP. Yet, in practice, no meaningful cooperation followed, as evidenced from the fact that the CMP was established in 1981, but only became operational in 2005. Eventually cooperation did materialize,Footnote 113 which resulted, according to the UN Secretary-General, into ‘a model of successful cooperation between Greek Cypriot and Turkish Cypriot communities’.Footnote 114 It needs to be stated though, that this ‘successful cooperation’ still does not suffice in meeting Cyprus’ and Turkey’s international legal obligations.Footnote 115
5.2. Diminishing the obligations of the duty bearers
The second consequence of the phenomenon we identify is that even when victims seek to challenge the fact that their human rights are not fully protected, they are often unsuccessful because the attempted shifting of responsibility has diminished the obligations of states, which are the real duty bearers. The ECtHR has held in the past that ‘The authorities [of Cyprus and Turkey] are not exempted from their obligation [to conduct an] investigation [in cases of missing persons] but may take the benefit of the work done by the CMP in this respect.’Footnote 116 Yet, in practice, over the years, both states have used the CMP’s existence as a justification for not meeting their legal obligation to unilaterally investigate the fate of missing persons believed to be in their own jurisdictions.Footnote 117
Neither Turkey nor the Turkish Republic of Northern Cyprus (TRNC) have undertaken any investigations, other than those conducted by the CMP, for persons who went missing or disappeared during the conflict. Since the TRNC is not a recognized state under international law, the ECtHRFootnote 118 and the UNFootnote 119 have accepted that Turkey is legally and politically responsible for actions in the north of Cyprus. The official narrative of Turkey is that all missing and disappeared persons were killed during the inter-ethnic hostilities and war (hence why they are referred to as ‘martyrs’ in official documentsFootnote 120 ) and there is, therefore, nothing to investigate.Footnote 121 Further, when Turkey was directly confronted with its legal obligations, it diverted attention by referring to the CMP. This was, for example, the argument made in ECtHR proceedings concerning missing persons when Turkey argued that it was ‘only logical’ that the CMP be regarded as an appropriate remedy.Footnote 122
Cyprus has also refused to begin investigations to locate missing or disappeared persons in the areas under its effective control, even in cases where the missing person was a Greek Cypriot and there was credible information as to where he was buried.Footnote 123 In some cases where remains have been located and identified through the CMP, Cyprus begun criminal investigations, but these have not resulted in any prosecutions to date.Footnote 124 Finally, when Turkish Cypriot family members of missing persons brought a case to a Cypriot court arguing that their rights had been violated because of the state’s failure to investigate, the court came up with a defence (what it called ‘the doctrine of an act of government’) that granted immunity to the state for its actions and omissions relating to missing persons.Footnote 125 The defence is novel in that it has not been used by Cypriot courts in cases other than the ones concerned with persons who went missing during the conflict. According to this defence, missing persons are among the consequences of ‘the Cyprus Problem’, an issue of political nature, falling within the exclusive competence of the executive, and therefore, non-judicially reviewable. The political nature of the conflict makes a political body, like the CMP, better suited to handle it. With this argument, Cypriot domestic courts effectively used the CMP to shield the authorities from their legal obligations in relation to those who went missing during the conflict.
When it delivered its seminal Cyprus v. Turkey judgment in 2001, the ECtHR noted that, ‘although the CMP’s procedures are undoubtedly useful for the humanitarian purpose for which they were established, they are not of themselves sufficient to meet the standard of an effective investigation’.Footnote 126 Even a cursory reading of the judgment suggests that there was no ambiguity, in the Court’s mind, that the CMP was not delivering what states were legally obliged to do.Footnote 127 It is in light of this that the Court’s finding in the latter case of Varnava v. Turkey should be understood. In Varnava, a 2009 judgment, the ECtHR held that missing persons’ cases from Cyprus that had been submitted to the Court after the end of 1990 would be found inadmissible. Its rationale was that by 1990, nine years after the establishment of the CMP, it should have become apparent to the families that the Committee ‘no longer offered any realistic hope of progress in either finding bodies or accounting for the fate of their relatives in the near future’.Footnote 128 By that time, therefore, relatives of missing persons should have realized that the CMP would not provide the remedy they expected, and they should have resorted to the ECtHR instead. Those that did not (who, in practice, are all victims except the applicants in Varnava itselfFootnote 129 ) are barred from accessing the Court. Thus, the time frame the ECtHR established to assess when the applicants should have applied to the ECtHR was based not on domestic proceedings or the initial violation, but on the Courts’ assessment that by 1990 it was clear the CMP was ineffective.
It appears from the Court’s reasoning that the deadline for submitting an application to the ECtHR can be extended, if the applicants are attempting to make use of an effective remedy domestically. However, since by 1990 it should have become clear that the CMP did not provide such effective remedies, the families should have, by then, applied to the Court. This reasoning and its humanitarian consequences may be criticized on other grounds (such as that the date chosen by the Court was arbitrary); what is clear for our purposes is that the ECtHR connected the admissibility of this and future cases to the performance of the CMP. Thus, although the Court did not treat as, and did not label the CMP, a duty bearer, it considered its performance an important factor in determining whether it should consider Turkey liable for human rights violations. Ultimately, the practical implication of the judgment is this: the establishment of a humanitarian body (and, paradoxically, its inability to work effectively), shielded Turkey and Cyprus from their legal responsibilities under the European Convention on Human Rights.
6. Missing migrants in the Mediterranean
Thousands of migrants go missing in the Mediterranean each year. The IOM has recorded over 31,000 fatalities of persons crossing the sea between 2014 and 2024,Footnote 130 which is about half of all globally recorded migrant deaths. There are three main migration routes in the Mediterranean: the Central one covers crossings from Libya, Tunisia, Egypt, and Algeria to Italy, and to a lesser extent, Malta. On this route migrants go missing both because of drownings and due to so-called pullbacks, that is departure prevention measures.Footnote 131 Migrants who have been brought back from this route to Libya have been reported to be forcibly disappeared.Footnote 132 The Western Mediterranean route encompasses journeys to Spain from Morocco and Algeria, while the Eastern Mediterranean route covers the maritime migration from Turkey to Greece, and to a lesser degree Cyprus and Bulgaria. Each of these routes has its own trends and peculiarities, but the overall data on all routes demonstrates that they are extremely dangerous and most migrants who die are not identified. For example, on the Western Mediterranean route about 91 per cent of the deaths were caused by drowning. Out of those, only 28 per cent of the remains were recovered.Footnote 133
Since the vast majority of the migrants goes missing in the Mediterranean while travelling irregularly, official records and documentation – which usually are available after shipwrecks – do not exist. Establishing the fate of the missing migrants and informing the families is not possible without close cooperation between different states and actors, as it requires, among other, collecting data, cross-checking it, and conducting DNA testing both of the human remains and of relatives, who usually are in different countries than the one the person went missing in.
A 2021 document published by the European Commission is an interesting example of how EU member states show off Red Cross and Crescent movement actions when relating to missing migrants in the Mediterranean. The document includes five boxes with examples of national policies and good practices, out of which three relate to the International Red Cross: first, the ICRC missing persons project; second, the Red Cross and Crescent movement restoring the family links network; and third, a collaboration between a national Red Cross society and municipalities.Footnote 134 In fact, the International Red Cross addresses migrants missing in the Mediterranean regularly. For example, it has developed innovative tools helping to identify missing migrants, as it runs a project in Spain to analyse networks of social connections of migrants missing at sea, to uncover more avenues of inquiry for tracing and forensic activities.Footnote 135 In 2022, it also published a report on migrants’ deaths, revealing that on Europe’s southern borders only 13 per cent of the remains were found and buried.Footnote 136 While actions and research by the International Red Cross are welcome, presenting them as part of national policies and good practices diminishes the obligations of the states, who are the duty bearers.
6.1. Rightlessness of victims
Just as with regard to their own citizens, states have an obligation to prevent and investigate migrants’ losses of life occurring within their jurisdiction. However, states appear not to be taking these legal obligations seriously with regard to migrants in the Mediterranean and, in particular, with regard to irregular ones. This becomes apparent in how states react to the discovery of human remains that are assumed to belong to potentially irregular migrants: a study on the Greek island Lesbos showed that while 97 per cent of remains of persons (perceived as) citizens are identified, the identification rate drops to 20 per cent in cases of irregular migrants.Footnote 137 Such outcomes in the region stem from different reasons, including policy decisions. For example in Malta, only those migrants who have died in the country itself are registered and identified; those whose remains arrive on boats or on the shore are not registered.Footnote 138 Also, in Italy, an autopsy on death migrants is conducted only in selected circumstances and at the discretion of provincial authorities; thus, identification is not always of primary interest.Footnote 139 In Libya, reporting of missing persons is only available for citizens of Libya, making it impossible to file claims for the thousands of migrants passing through Libya to Europe, or brought back to Libya from Europe.Footnote 140 Such policies lead to rightlessness of missing migrants and their families in the Mediterranean.
As states refer to ‘accidents’ and ‘tragic’ incidents with regard to border deaths and missing migrants, language itself becomes a tool for renouncing their responsibility for the acts.Footnote 141 While the phrases might mirror the humanitarian approach taken by the International Red Cross, such wording is different when used by states: finding remains of persons that died at a border raises strong suspicions that there was a violent loss of life, as the persons might have died because of actions of smugglers or traffickers. Thus, states are required to investigate. As state violence with regard to irregular migrations at borders has been widely reported,Footnote 142 the remains could also belong to persons who died as a result of actions of state officials. However, when finding human remains of irregular migrants, Mediterranean states generally do not initiate investigations; instead, the humanitarian initiatives adopted are often driven by the Red Cross and Red Crescent movement.
A clear example of an enforced disappearance is the secret detention of migrants, which takes place at some border crossings. When the existence of these detention centres is denied by the state, or the fate and whereabouts of the disappeared persons are kept secret, this constitutes an enforced disappearance. Although in the migration context, the disappeared persons are often subsequently released after several days or weeks, this does not change the categorization of the initial act as an enforced disappearance under international human rights law.Footnote 143 States need to ensure that all individuals who allege that an enforced disappearance occurred have the right to report the complaint to competent authorities. However, states often do not perceive, or they wilfully ignore, missing migrants to be (possibly) victims of enforced disappearance;Footnote 144 thus, often, only the International Red Cross is left to address the needs of the forcibly disappeared.
6.2. Diminishing the obligations of the duty bearers
This section argues that states are attempting to diminish their obligation as duty bearers by relying on three pieces of evidence: first, arguments raised by states at the UN treaty bodies dialogue; second, the Global Compact on Migration; and third, wording on international initiatives to address missing migrants in the Mediterranean.
In the dialogue with the UN Committee on Enforced Disappearances, Greek authorities were asked about identification and return of remains of disappeared migrants. The authorities did not explain how they engaged in these activities. They also did not argue that identifying and returning remains of missing migrants is not their legal obligation under the ICPPED. Instead, they stated 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.Footnote 145
States treat the deaths of migrants on the move as a humanitarian crisis to which they may, benevolently, choose to react, rather than a situation that triggers a legal duty with which they must comply. This is exemplified by the Global Compact on Migration. The role of the International Red Cross is made clear in the very text of the Global Compact, as it provides that it will be implemented in cooperation with the International Red Cross and Red Crescent movement.Footnote 146 Its objective 8, ‘Save lives and establish coordinated efforts on missing migrants’, reads as follows:
We commit to cooperate internationally to save lives and prevent migrant deaths and injuries through individual or joint search and rescue operations, standardized collection and exchange of relevant information, assuming collective responsibility to preserve the lives of all migrants, in accordance with international law. We further commit to identify those who have died or gone missing, and to facilitate communication with affected families.Footnote 147
Accordingly, states commit to cooperate to save lives and prevent migrant deaths ‘in accordance with international law’.Footnote 148 Conversely, the second part of the commitment – identifying those who have died or gone missing and facilitating communication with affected families – is not accompanied with a note that this is done in accordance with the law. Such a phrasing of the Global Compact on Migration can create the impression that states are only under international legal obligations to save lives and not to identify people and communicate with families.Footnote 149 In practice, with regard to missing migrants instead of communicating with the families in order to search for the disappeared, states focus their efforts on enforcement control and intelligence gathering.Footnote 150 However, if a violent loss of life occurs on the territory of a state, authorities are under an obligation to identify the human remains, as this is necessary to conduct the investigation. Additionally, in cases of enforced disappearances of migrants, states have an obligation to facilitate communication with families. These legal obligations are, however, not highlighted in the Global Compact on Migration, thus mirroring the approach of the International Red Cross and creating the impression that such acts are merely humanitarian responses states may take.
It is not only the ambiguous wording of Objective 8 that provides evidence of states’ attempt to diminish their obligations as duty bearers. While states have committed to implement all objectives of the Global Compact on Migration, Objective 8 receives less ‘pledges’ – that is, commitments member states have undertaken to advance the Global Compact on Migrations’ implementation – than other objectives.Footnote 151 It is also striking that a big share of the pledges for Objective 8 was submitted by international organizations, rather than states, showing the huge involvement and relevance of these bodies, including the International Red Cross, on missing migrants.Footnote 152 The 2022 UN Secretary-General report on the Global Compact on Migration has also identified ‘limited attention in the regional reviews’ to the loss of migrant lives.Footnote 153 This shows that states are not willing to commit to the better implementation of this objective, and are happy, therefore, to leave any work that has to be done to other actors, including the International Red Cross.
Lastly, the diminishing of the obligations can be observed in the way words are chosen to speak about missing migrants. In the early 1990s, several NGOs, journalists, and academics started various initiatives aiming at collecting data on the number of migrants who died during their journey in the Mediterranean. This task was eventually taken over by the IOM, which set up a ‘missing migrants’ programme in 2014, professionalizing and centralizing the collection of data on migrant deaths. There are significant differences between the databases set up by NGOs and the IOM. This is exemplified by the very choice of words for the titles of the databases used in these programmes. One of the first civil society initiatives for recording migrant deaths was the NGO United for Intercultural Action publishing a ‘List of Refugee Deaths’.Footnote 154 While both this initiative and the IOM’s are recording the same events – that is migrants, including refugee seekers, that have died – one database uses the word ‘deaths’ in its title, while the other settles for the more palatable term ‘missing’.Footnote 155 This difference in language is connected to the goal of the databases, as the NGOs were aiming at establishing responsibility for the deaths and pushing states to take actions to protect migrants, while the IOM’s project aims primarily at recording data.Footnote 156 Moreover, the NGO initiative made the choice to refer to ‘refugees’, assuming that the persons it was addressing had particular rights to protection under international law. The IOM missing migrants programme, in contrast, does not make this assumption, as it uses the (more neutral and less legally protected) term ‘migrant’.Footnote 157 Factually, at the point of recording deaths, it is in most cases not possible to establish whether the person had indeed a particular right to protection under international law as a refugee or not, thus in case of both databases, the term used is a choice its creators made. The differences in the wording are significant because the NGO version highlights the legal obligations by states with regard to persons who have the right to protection (refugees), while the IOM – which is itself made up of states – moves the focus away from legal responsibility. This observation is relevant for the argument made in this paper, because ‘missing migrants’ is not only the term used by the IOM, but also by the ICRC.Footnote 158
7. Conclusion
This article has illustrated that in two separate contexts – when addressing persons who went missing in conflict and during migration – states attempt to shift their international legal responsibilities to the International Red Cross. The connection between these two contexts has been acknowledged by the ICRC itself, as it explained its involvement in missing migrants by referring to its extensive experience in contexts of armed conflict.Footnote 159 In the case of missing persons in Cyprus, the shift to the ICRC happens through Cyprus and Turkey outsourcing their obligations to the CMP, a body that was conceptualized by, and continues operating today with involvement of, and cooperation with, the ICRC. In the case of missing migrants in the Mediterranean, this is evidenced by statements of states to this effect, but also their actual failure to act in accordance with international law, which implies their expectation that it is the International Red Cross that should pick up the slack.
This phenomenon has two important consequences: it undermines the rights of victims on the one hand, and it diminishes the obligations of states, as duty bearers, on the other. For example, in Cyprus, while family members have the right to be informed of their relatives’ fates and should also receive compensation, these rights remain unmet by both Cyprus and Turkey, and by the CMP to which they have outsourced their responsibilities. Further, even though the ECtHR has explicitly acknowledged that the CMP is a humanitarian body, it has held that the failure of the relatives to treat the CMP as an ineffective remedy in time, barred them from having access to the Court for the protection of their rights. Thus, the strategy that Cyprus and Turkey adopted, of shifting their legal obligations to the CMP, was effective in shielding them from these very responsibilities.
Similar observations also appear in relation to missing migrants. States do not engage effectively in the search or identification of remains, but often merely observe the International Red Cross and other actors conducting such operations. When reporting to UN bodies what actions they have taken to meet their legal obligations in relation to missing migrants, they again shift their responsibility by explicitly pointing to the actions of the ICRC and national Red Cross societies. Whether these actions are enough to meet their legal obligations, somehow stops being the states’ concern, as it is now the International Red Cross that is in the spotlight. This strategy is particularly detrimental for the victims because of who the states shift responsibility to. Had they attempted to shift responsibility to another state – which would have been possible in both case studies because of their transnational elements – this would have been less of a problem for the victims because another duty bearer would have had a legal obligation to act. However, the decision to shift responsibility to the International Red Cross, which is not a duty-bearer, means that the gap that is now created must be filled by a humanitarian approach; while noble, this approach simply does not protect the rights holders to the same extent.
As the International Red Cross has immense experience and know-how concerning missing persons, it is reasonable for states to rely on the organization and 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. 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 the capacity – and the obligation – to conduct investigations, prosecute perpetrators, and provide reparation to families. Thus, while cooperation between states and the Red Cross and Red Crescent 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.
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