Introduction
The search for the victims of enforced disappearance requires the implementation of a mixed or hybrid model, made up of two dimensions: one of a judicial nature, which requires the courts to pursue and enforce the legal responsibilities of the perpetrators of this horrendous crime, and another of a humanitarian nature, which demands the existence of an administrative body specialized in the search for disappeared persons.Footnote 1 Both dimensions must complement each other and be coordinated, as they pursue different ends which are interrelated with the pillars of transitional justice: justice, truth, reparation, guarantees of non-repetition, and memory.Footnote 2 Thus, the implementation of a mixed model requires that the search be organized on the basis of a national plan, comprising several stages and complying with some basic principles.Footnote 3
Through their practice and jurisprudence, the International Committee of the Red Cross (ICRC), some international human rights bodies of the universal system – the Working Group on Enforced and Involuntary Disappearances (WGEID) and the Committee on Enforced Disappearances (CED) – and the bodies of the inter-American system – the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights (IACtHR) – have elaborated international instruments, standards, good practices and recommendations on the need to implement, at the national level, a body with specialized competences in the search for victims of enforced disappearance, in charge of designing and executing a national plan that lays out a public policy with concrete goals and actions. An international instrument that contains a systematization of the standards on the search for missing persons is the CED’s Guiding Principles on the Search for Missing Persons (CED Guiding Principles).Footnote 4 For its part, the ICRC has developed good practices on different issues related to the search for missing persons.Footnote 5 In Latin America, the IACtHR has highlighted in several judgments the need for a humanitarian search to be organized at the national level to complement the pursuit of justice.Footnote 6 It can be concluded from the above that the search for missing persons is an autonomous human right for victims of enforced disappearance and their relatives, and that the State must comply with the international obligation to guarantee this right.Footnote 7
Some of the international standards related to search refer specifically to the human remains of victims of enforced disappearance. The origin of these standards can be traced back to their regulation in international humanitarian law (IHL) treaties, which establish specific duties to search for, collect, identify and return the dead in the framework of an armed conflict.Footnote 8 In addition, IHL regulates a series of international obligations on the search for persons who disappear in that context.Footnote 9 These rules are justified by the humanitarian ideal that the dead always deserve respect, even in war, and that failure to comply with these duties violates basic values of humanity.
Some conceptual clarifications may be helpful to understand the scope of application of international standards on search efforts. The definition of “enforced disappearance” under international human rights law differs from the notion of “missing persons” under IHL. Enforced disappearance constitutes an internationally wrongful act by the State, which, depending on the context, may also qualify as a common criminal offence or a crime against humanity. It requires the involvement of State agents or individuals acting with State support, entails the deprivation of liberty, and involves the denial of information regarding the fate or whereabouts of the victim, effectively placing the person outside the protection of the law.Footnote 10 In contrast, the concept of “missing persons” is broader and refers to cases where information about a person’s whereabouts is lost due to an armed conflict.Footnote 11 This term is adequate for the application of IHL and the recommendations of the ICRC.
We consider that international standards on search efforts are applicable to both categories, as one of their objectives is to recover victims alive or, failing that, to identify them and return them with dignity to their loved ones. This broad approach allows for a holistic and flexible application across diverse contexts. In fact, in States that we have selected, the delineations of the search plans’ scope of application are often broad, generally referring to missing persons, except for Chile, whose search plan is limited to enforced disappearances.Footnote 12 This trend reflects how international search standards have been incorporated into the domestic regulations of countries facing diverse contexts of structural violence.
This article aims to answer the following research question: how aligned are the national legal regulations of search plans in Latin America with international standards that ensure dignified and respectful treatment of the remains of victims of enforced disappearance? To answer this question, the study is based on a comparative analysis of national search plans and regulations implemented in Colombia, Chile, Mexico and Peru. The comparative examination of a small number of cases (known as a “small-N” approach) is an inference-oriented method in comparative research.Footnote 13 One of the key criteria for conducting small-N studies aligns with the “most different cases” principle, which involves comparing cases that are highly distinct except for the causal factors of interest.Footnote 14 To that end, this approach compares cases that differ in as many general characteristics as possible but share the phenomenon under investigation. The purpose of this method is to isolate potential causes of a phenomenon by identifying common factors that recur across completely different contexts. If the phenomenon of interest occurs in highly diverse cases yet is consistently associated with certain shared factors, those factors are more likely to be relevant in explaining the phenomenon.
The transitional contexts of Chile, Colombia, Mexico and Peru are markedly different regarding missing persons, as they vary in terms of the context in which the disappearances occurred, the types of perpetrators involved, the timing of the disappearances, the methods employed, and the institutional responses in terms of truth, justice and reparation. The choice of these cases, justified by the profound diversity of their contexts and transitional processes, allows us to examine whether, despite these differences, the search plans share common elements in the regulation of standards on human remains.
The research was carried out by applying a method of documentary analysis of the international instruments that contain these standards and of the regulations, protocols and public policies approved at the national level to develop forensic and humanitarian work in relation to search plans. This “grounded theory” methodological approach was implemented to assess compliance with international standards through the collection and systematic analysis of regulations on local strategies and actions.Footnote 15 The research thematically coded the content of this diversity of documents in order to identify the presence or absence of good practices.Footnote 16
Throughout the study, it is shown that – in general – most of the international standards on search, recovery, identification, and dignified restitution of remains of victims of enforced disappearance have been incorporated into search plans. Although this analysis is strictly normative, it is essential to point out that the implementation of such criteria has not been entirely effective in practice. For this reason, while it is beyond the scope of the article to address this matter more fully, critical notes will be added on some essential issues, based on the recommendations of reports from international bodies.
The article begins with an explanation of the criteria for the administrative search for missing persons and the establishment of official lists of victims and registers of burial places or sites of forensic interest. The second section is devoted to standards on the recovery of remains and preservation of evidence. The third section will address good practices on identification of human remains of victims of enforced disappearance. The fourth and final part will address how to proceed with the restitution of victims to their relatives and the burial of remains. The article ends by answering the research question and offering some reflections on the importance of further studies in this area.
The search for missing persons and the establishment of victim records and lists of burial sites
Official registers of missing persons and database management
The creation of registers to provide specific data on all disappeared persons is a measure promoted by the institutions of the universal and regional human rights systems. Registration, reliable information and statistical data facilitate knowledge of the magnitude of the phenomenon of enforced disappearance and allow for more effective prevention, investigation and search measures.Footnote 17
IHL governs the international obligations of States concerning individuals who die or go missing in the context of armed conflict. These obligations represent the foundational normative framework upon which the ICRC has developed its humanitarian standards regarding missing persons. For instance, Additional Protocol II (AP II) addresses the right to truth, which stands as one of the most significant rights for the relatives of missing persons.Footnote 18 Among the numerous and detailed international obligations set forth in IHL treaties, notable provisions include those regulating the recording of information on protected persons and the procedures for transmitting such information.Footnote 19
In turn, the General Assembly of the Organization of American States has pointed out the need to guarantee the proper handling of information, including that relating to the personal data of missing persons and their relatives, through the creation of centralized databases that gather, protect and manage information in accordance with international standards.Footnote 20 In the same vein, the CED Guiding Principles affirm that States should establish registers and databases on missing persons covering the entire national territory and allowing for a breakdown of, inter alia, the authority entering the data; the dates on which a person was reported missing, found alive, their body exhumed, and/or their mortal remains identified or handed over to their families; and the investigations to establish whether the event was an enforced disappearance and the reason for the disappearance.Footnote 21
The information contained in registers of victims of enforced disappearance must be permanently updated, consolidated and purged, avoiding divergences with other databases that may contain information on disappeared persons.Footnote 22 The registers must have adequate measures for archiving, custody, maintenance, availability and accessibility.Footnote 23 The collection, processing, use and conservation of personal information must not infringe on the human rights of the person, nor be used for purposes other than the search.Footnote 24 The search body must design a protocol for the entry and certification of the veracity of all this information.Footnote 25
At the local level, search plans and protocols in Mexico and Colombia exhibit a higher degree of compliance with international standards compared to those in Peru and Chile. In Mexico, the National Registry of Missing and Unlocated Persons (Registro Nacional de Personas Desaparecidas y No Localizadas, RNPDNO) organizes and concentrates information on missing persons to support their search, location and identification.Footnote 26 The RNPDNO is complemented by the Unified System of Technological and Computer Information, which allows the updating and cross-referencing of data,Footnote 27 and by the National Forensic Data Bank, in charge of integrating biometric and identification information.Footnote 28 These mechanisms enable interoperability with the registries of deceased and unidentified persons, aligning with international standards that promote centralized, accessible and updated databases, thus guaranteeing the integrity and availability of information.Footnote 29
In Colombia, various institutions have compiled data on disappeared persons to fulfil different purposes.Footnote 30 Regarding the specific task of searching for disappeared persons, there is a National Register of Disappeared Persons, administered by the National Institute of Legal Medicine and Forensic Sciences, which operates as a national and inter-institutional information system. Its objectives include the identification of bodies subjected to forensic autopsies, the search for disappeared persons, and the monitoring of cases.Footnote 31 Additionally, the Search Unit for Disappeared Persons (Unidad de Búsqueda de Personas Desaparecidas, UBPD) manages what is referred to as the “universe of persons reported as disappeared”. The UBPD’s registry is based on multiple sources of information and includes individuals who disappeared due to and within the context of the Colombian armed conflict prior to 1 December 2016, whose whereabouts remain unknown to their loved ones or were unknown at some point.Footnote 32
Given the volume of missing persons in Mexico and Colombia, these two countries incorporate strategies aimed at estimating a reliable number of victims through statistical procedures based on the collation of multiple sources of information.Footnote 33 However, in both States there have been problems with the counting of victims and their classification. Regarding Mexico, the CED considered as progress the fact that the RNPDNO reported 111,540 missing persons from 1 January 1962 to 12 September 2023, but expressed concern due to the lack of clarity on the number of those persons who are victims of enforced disappearance, the insufficiency of disaggregated data, and the absence of a clear and transparent methodology for continued updating of the information.Footnote 34 Regarding Colombia, the CED criticized the existence of multiple databases on missing persons that are administered by different public bodies – which has hindered the process of purging and characterizing the data – and the problem of under-reporting of figures, which is due to a lack of confidence in the institutions on the part of the victims, the fear of reprisals, and the absence of public bodies in various areas of the country.Footnote 35
Peru and Chile face some challenges to fully comply with international standards related to the registration of victims of enforced disappearance. The National Register of Disappeared Persons in Peru maintains a humanitarian approach focusing exclusively on cases of disappearance that occurred between 1980 and 2000, which limits its coverage and makes it difficult to comply with the internationally recommended principle of exhaustiveness.Footnote 36 Chile, for its part, is in the process of developing a single list of victims aimed at unifying information on persons executed and disappeared in the context of State terrorism (1973–90), and updating it regularly.Footnote 37 However, this registration system operates on the basis of an official list of victims established by the truth commissions and does not include a permanent qualification mechanism to update the list.Footnote 38
Identification and protection of burial sites
The case law and practice of international courts and bodies have underlined the need to identify and protect possible burial sites and mass graves. The IACtHR has emphasized the importance of obtaining information on burial sites, identifying and registering them, and undertaking the necessary measures for their protection, as well as for the exhumation of remains.Footnote 39 For its part, the WGEID has recommended that States fulfil their obligation to thoroughly investigate known mass graves and continue searching for other possible burial sites. This includes investigating all potential mass grave locations and creating a comprehensive map of such sites.Footnote 40 In this context, a comprehensive policy to search for missing persons could facilitate the discovery of multiple mass or individual gravesFootnote 41 and the collection of material evidence for the criminal prosecution of those responsible.Footnote 42
Good practice in the identification, recording and protection of sites of forensic interest has been compiled in the Minnesota Protocol on the Investigation of Potentially Unlawful Death (Minnesota Protocol). This protocol recommends locating and recording all relevant sites, including potential burial sites, and recording their exact GPS coordinates.Footnote 43 In addition, it suggests maintaining detailed control of all personnel accessing the site, and implementing protective measures to eliminate or mitigate the impact of environmental or human factors that could degrade the physical evidence available at the site.Footnote 44
The public policy instruments analyzed reveal a partial alignment between the national search plans established in Mexico and Colombia and international standards concerning the development of strategies and measures for the identification and protection of burial sites. In Mexico, the Homologated Protocol for the Search for Missing and Unaccounted-for Persons (Protocolo homologado para la búsqueda de personas desaparecidas y no localizadas, PHBPD) mentions the georeferencing of graves and the obligation for authorities managing mass graves to input information into the National Register of Mass and Clandestine Graves.Footnote 45 However, neither the PHBPD nor the General Law on Missing Persons specifies the detailed elements of this registry or identifies the authority responsible for its management.
In Colombia, one of the strategic objectives of the National Search System is to strengthen the capacity and effectiveness of the search for missing persons through the articulation, coordination and exchange of information between State entities, civil society organizations and other relevant actors.Footnote 46 This system is complemented by the actions of the UBPD and the National Registry of Graves, Illegal Cemeteries and Burials, which prioritize the documentation and protection of areas affected by the armed conflict.Footnote 47 In both cases, the information obtained from the unified registers of burial sites is used for the analysis of patterns of enforced disappearance and the identification of new sites of forensic interest. The CED has noted that a lack of effective inter-institutional coordination hinders the operation of the entire search system.Footnote 48
The establishment of a register of these categories of sites and the implementation of measures for their protection are actions that have not been satisfactorily achieved in the models analyzed. With respect to Mexico, for example, the CED recommended the elaboration of a national programme of exhumations and forensic identification, and the implementation of a public policy for the safeguarding of municipal cemeteries and mass graves located in these sites.Footnote 49 Some problems regarding the protection of sites of interest have also arisen in Colombia.Footnote 50
Peru and Chile also face challenges in meeting international standards. In Peru, although the Directorate-General of Search for Missing Persons (Dirección General de Búsqueda de Personas Desaparecidas, DGBPD) conducts data cross-checks and on-site inspections at potential burial sites, there is no strategy to establish a centralized and comprehensive registration system to ensure coverage and the regular updating of information.Footnote 51 Similarly, in Chile, the National Search Plan includes the identification of sites of interest but lacks a centralized registry or detailed mapping of these locations.Footnote 52 In both cases, adopting a more systematic approach supported by advanced technology would enhance the ability to consolidate registers and comply with international standards.
Recovery of remains and associated evidence
Prospecting, excavation, and recovery of remains
Internationally, the exhumation and recovery of remains is considered integral to the State’s duty to search for the disappeared. In this regard, the IACtHR has indicated that exhumations must be initiated and facilitated by the State, which bears the responsibility to conduct effective searches to ensure the prompt location of the remains of disappeared persons.Footnote 53 To fully meet with this obligation, States must guarantee the availability of trained personnel, implement procedures that uphold the right to information and the participation of relatives, establish systems that enable for coordination among institutions, and utilize appropriate information to locate remains buried in cemeteries or clandestine graves.
The CED, WGEID and IACtHR have recommended that States establish specific exhumation plans for clandestine and mass graves.Footnote 54 Such plans should provide, inter alia, for the use of technologies for site exploration and the involvement of forensic experts in the use of archaeological methods for the excavation and recovery of remains.
In particular, the WGEID has underlined the importance of implementing advanced technologies, such as LiDAR (Light Detection and Ranging) and georadar, which allow burial sites to be mapped and precisely located prior to excavation. In addition, it has emphasized the need to apply qualitative analysis and spatial statistics to delimit areas or places of interest and identify areas most likely to contain mass graves, thereby facilitating the planning of search operations.Footnote 55 The integration of these technologies not only optimizes the efficiency of the explorations but also contributes to the preservation of the forensic context and the correct identification of human remains.
For its part, the CED has pointed out that the involvement of forensic experts in the recovery of human remains is essential to ensuring rigorous procedures to facilitate the identification of victims. These specialists must apply appropriate forensic methods and provide technical expertise in the design and implementation of search and identification strategies.Footnote 56 In the same vein, the Minnesota Protocol emphasizes an interdisciplinary approach to the recovery and analysis of human remains, wherein forensic medical personnel collaborate with other specialists to document each find in detail, including an accurate inventory of remains and contextual evidence.Footnote 57 In addition, an ICRC guide highlights the importance of archaeological and forensic anthropological experts in identifying patterns of inhumation and analyzing the context of finds – factors which are of great relevance to understanding the circumstances of death and properly identifying victims.Footnote 58 Furthermore, in contexts of severe and widespread human rights violations, the practice of forensic procedures, such as exhumations, cannot be confined to a strictly scientific and biological understanding; it is essential to incorporate social and cultural approaches.Footnote 59
At the local level, the comparative analysis shows that Latin American countries have implemented measures in their search plans and protocols that, in general terms, are in line with international standards. In Mexico, the PHBPD contemplates the intervention of multidisciplinary teams and the use of centralized databases for the documentation of findings and the protection of genetic information.Footnote 60 In Peru, the National Search Plan establishes the use of archaeological and forensic techniques in areas affected by the armed conflict, ensuring the participation of experts and the adequate documentation of the context of each find.Footnote 61 Colombia, meanwhile, has developed a National Search Plan that prioritizes the location and recovery of remains in cemeteries and clandestine graves, with safeguards and strategic planning that incorporates contextual analysis.Footnote 62
While such protocols represent significant progress, the CED and the WGEID have criticized countries for deficiencies in their policies and capacities regarding the exhumation and recovery of human remains. In Peru, the WGEID points to insufficient resource allocation and lack of speed in exhumations in regions affected by violence, such as Ayacucho.Footnote 63 In Mexico, the CED has raised concerns regarding the absence of a national exhumation programme and a national register of graves, as well as insufficient budgetary allocation and a lack of trained forensic personnel, which impedes the rigorous identification of remains.Footnote 64
Colombia has been criticized for its limited coordination between State institutions and relatives’ organizations, as well as a lack of protection at burial sites and restricted access to difficult-to-reach areas, factors that hinder search and exhumation efforts. Concerns have been raised regarding the management of unidentified bodies buried in public cemeteries and victims of enforced disappearance whose exhumed remains have yet to be identified. Reports highlight issues such as inadequate action by the Attorney-General’s Office following reports of discovered bodies, insufficient and inaccessible genetic sampling campaigns in rural areas, and administrative failures in public and private cemeteries, including the alteration, loss, commingling or destruction of unidentified remains.Footnote 65
Chile, on the other hand, lacks a detailed protocol and specific resources for the preservation of information and the management of traceability of remains, so the creation of a centralized system for the secure management and storage of forensic data could close this gap and improve the implementation of the country’s National Search Plan.Footnote 66 These observations underline the need to strengthen forensic infrastructure, improve resource allocation and establish robust protocols to meet international standards in the recovery of remains.
Collecting, documenting, transporting and storing evidence
The chain of custody in forensic procedures, according to the Minnesota Protocol, is an essential principle for preserving the integrity of evidence from collection to presentation in court.Footnote 67 This standard states that every stage of evidence handling – including collection, documentation, transportation and storage – must be thoroughly recorded to ensure traceability and to avoid any possible contamination or tampering. The technical specifications incorporated in the Minnesota Protocol require the use of appropriate protective equipment and specific packaging methods for each type of evidence, including human remains, which must be labelled and photographed under a standardized system.Footnote 68 This process seeks to ensure that each piece of evidence retains its authenticity and that its handling is verifiable and secure at all stages of the investigation.
Accordingly, the ICRC’s Forensic Identification Guide sets out specific guidelines on the meticulous documentation of each phase of the forensic process, from recovery to identification.Footnote 69 It also emphasizes the use of detailed photographic records, anatomical sketches and inventory forms to facilitate an accurate reconstruction of the scene. For skeletal remains, the Guide instructs their packaging and transport in conditions that preserve their integrity, minimizing the risk of damage or mixing of evidence.Footnote 70 Each record, in addition to being supported by a unique labelling system, must be thorough, enabling third-party validation of the process and ensuring the fidelity of the data collected for future investigations.Footnote 71
The rigorous implementation of these standards is fundamental to the reliability of evidence in contexts of enforced disappearance, where the chain of custody has direct implications for the right to truth and justice. The Minnesota Protocol and the ICRC Forensic Identification Guide highlight that the loss or alteration of evidence could undermine the legitimacy of the investigation and affect the rights of the victims.Footnote 72 These standards underline the need for scientific and systematic practices, supported by detailed and verifiable records, to ensure the integrity and traceability of evidence from the scene of discovery to the judicial process.Footnote 73
The comparative analysis shows that Mexico, Peru and Colombia have implemented strategies aimed at complying with international standards related to the chain of custody. In Mexico, the PHBPD includes specific provisions for the documentation and secure handling of forensic evidence, seeking to ensure traceability from collection to final destination.Footnote 74 Colombia has also adopted detailed procedures that include the use of chain of custody forms and the precise labelling of each finding, which strengthens the continuity of evidence.Footnote 75 In Peru, forensic protocols implemented in areas affected by past conflicts also include measures for the preservation and rigorous documentation of remains and associated elements.Footnote 76
Despite these advances, however, further improvements are necessary. In Mexico, the lack of specialized personnel and resources can compromise the consistency of the chain of custody.Footnote 77 The CED has emphasized the need for more extensive forensic training and additional resources to enhance evidence management.Footnote 78 In Peru, the WGEID has pointed to a lack of integration between the entities responsible for custody and has recommended improved resourcing for hard-to-reach areas.Footnote 79 In Colombia, the CED has questioned security at exhumation sites in conflict zones, suggesting greater protection to avoid loss of evidence.Footnote 80 In Chile, the CED and WGEID have recommended the development of a comprehensive protocol to ensure traceability and complete preservation of forensic evidence throughout the recovery process.Footnote 81
Analysis and identification of remains
Ante-mortem and post-mortem data collection and collation
International standards for the collection and use of ante- and post-mortem data, especially in forensic identification processes, are comprehensively addressed in the Minnesota Protocol and the ICRC Forensic Identification Guide. The Minnesota Protocol states that the use of detailed and high-quality ante-mortem and post-mortem data, which must be rigorously cross-checked, is crucial for valid identification.Footnote 82 Ante-mortem data includes medical, dental and fingerprint records, as well as genetic profiles of family members when the former are not available.Footnote 83 In addition, the Minnesota Protocol recommends that interviews with family members for the purpose of compiling genetic profiles should be conducted by trained professionals, who should collect information in a sensitive manner and ensure the informed consent of the participants.Footnote 84
The ICRC Forensic Identification Guide complements these guidelines by stressing the importance of systematic recording of information obtained from missing persons and recovered remains. This record includes contextual data, evidence of possible ante-mortem injuries, and details of specific features of the body, such as tattoos, scars or prostheses, that may facilitate identification.Footnote 85 Post-mortem data, on the other hand, encompasses a comprehensive analysis of the remains using specialized forensic methods, such as anthropology and forensic odontology.Footnote 86 These procedures seek a comprehensive approach to identification, reinforced by cross-referencing genetic data between family profiles and unidentified remains.
The CED Guiding Principles also emphasize the importance of States establishing databases that centralize both ante-mortem and post-mortem information.Footnote 87 These databases should be designed to ensure interoperability with international databases, optimizing access to and management of genetic records while ensuring the confidentiality and security of sensitive information.Footnote 88 In accordance with these principles, the information collected should be used exclusively for identification purposes and should respect the human rights of the persons concerned, avoiding the misuse of personal data and protecting the dignity of the victims and their families.Footnote 89
Comparative analysis shows that in Mexico, the National Forensic Data Bank centralizes and systematizes genetic information, as well as ante-mortem and post-mortem profiles, in order to facilitate the identification of missing persons through a robust data infrastructure.Footnote 90 In Peru, the Genetic Data Bank collects biological samples from family members, enabling a comprehensive processing of forensic information while prioritizing data confidentiality.Footnote 91 In Colombia, the Genetic Profiles Bank manages campaigns in urban areas for the collection of genetic samples, although it faces limitations in rural areas.Footnote 92 Chile, through the Legal Medical Service (Servicio Médico Legal, SML), makes efforts in the collection of genetic samples, but with a less developed infrastructure compared to other countries.Footnote 93
Each country faces specific challenges that complicate full compliance with international standards. In Mexico, the CED has criticized the insufficiency of a systematic approach to obtaining family samples, recommending greater accessibility and data processing.Footnote 94 In Peru, the CED has recommended improved coordination between the Institute of Forensic Medicine and the DGBPD.Footnote 95 In Colombia, the CED has pointed to the inaccessibility of collection campaigns in rural areas and the lack of adequate management of unidentified bodies and unclaimed identified bodies.Footnote 96
Use of objective methods of identification
International standards recommend the use of primary methods of identification, such as DNA analysis, to ensure accuracy in the identification of human remains in contexts of enforced disappearance. These methods, as outlined in the Minnesota Protocol, are essential in cases where the condition of the bodies renders the use of conventional techniques, such as visual recognition, difficult.Footnote 97 DNA, fingerprints and dental records allow for highly reliable results, even when the remains have suffered significant degradation.Footnote 98 The accuracy of these methods ensures that forensic identification processes uphold high standards of scientific and ethical rigour.Footnote 99
Regarding deceased persons, IHL establishes the duty to search for and recover the dead in order to prevent their despoilment and ensure their identification.Footnote 100 It also enshrines a general principle of respectful treatment of the dead.Footnote 101 In cases where the circumstances of death are complex, such as those involving mass casualties, conflict-related fatalities or natural disasters, it is essential to employ additional methods of forensic anthropology for a detailed analysis of skeletal remains. This approach facilitates the identification of specific physical characteristics, injuries or previous pathologies.Footnote 102 By combining these forensic techniques, experts can address context-specific challenges, providing a suitable identification framework even in situations of advanced decomposition or commingling of remains.Footnote 103
The CED Guiding Principles stress that identification procedures should be governed by an objective and scientific approach, using techniques that are not only reliable but also respectful of the dignity of victims and their families.Footnote 104 In this regard, it is recommended that, whenever possible, genetic analysis be complemented by anthropological and radiological examinations.Footnote 105 These secondary methods provide valuable information in cases where remains have particular physical characteristics or markings that can facilitate the identification process without relying exclusively on genetic testing.Footnote 106 This multidisciplinary approach enhances the capacity of forensic systems to make accurate identifications in order to comply with human rights standards.
The four countries studied have adopted identification methods that are based on genetic analysis and forensic anthropology, thereby complying with international standards. These approaches ensure that forensic identification procedures maintain scientific rigour appropriate to complex contexts, such as mass graves and remains in an advanced state of decomposition. They also accommodate cases where conventional methods are insufficient, ensuring an accurate and respectful process.
Despite these significant advances, however, challenges persist in the uniform application of advanced techniques across all contexts. In particular, the lack of integrated multidisciplinary procedures and the limited availability of forensic experts specialized in anthropology and archaeology make it difficult to comply with international standards.
In line with the above, the CED and WGEID have criticized the lack of infrastructure, specialists and comprehensive multidisciplinary teams in the four studied countries. In Mexico, for example, the CED has underlined the need to expand technical capacities in order to ensure a thorough and rigorous analysis of remains.Footnote 107 In Colombia, the CED has recommended greater integration of resources, infrastructure and forensic experts to address the specific challenges associated with mass grave exhumations and the identification of remains.Footnote 108 In Chile and Peru, the WGEID has noted the importance of strengthening specialized forensic training and resources to ensure that identification processes respect the rights of families and uphold the highest standards of scientific accuracy.Footnote 109
In Chile, for example, the SML is the institution responsible for excavating, exhuming and identifying remains, following a judicial order.Footnote 110 Despite the identification errors it has made – most notably the controversial misidentifications of victims from Patio 29 at Santiago’s General CemeteryFootnote 111 – since undergoing restructuring in the mid-2000s, the SML has managed to regain trust and legitimacy, primarily due to the professionalism of its staff. However, issues such as adequate funding, the modernization of its working methods and the strengthening of its personnel have been long-standing concerns raised over the years.Footnote 112
Closing the search process
Dignified restitution and burial of identified and unidentified remains
International standards emphasize that the dignified restitution and burial of the remains of disappeared persons should be humane processes that guarantee the dignity and cultural and religious rights of families, as well as the right to truth. The ICRC states that the handover of identified remains should respect the principles of humanity, providing logistical and psychosocial support to families while ensuring that burial ceremonies reflect their cultural beliefs and practices.Footnote 113
The IACtHR has held that the act of handing over identified remains must be carried out at no cost to the families and with State support for funeral expenses, prioritizing speed and respect at all stages of the process.Footnote 114 This includes the obligation to ensure that families can bury their loved ones in accordance with their traditions, thus closing a cycle of mourning that often lasts for decades.Footnote 115 For their part, the CED Guiding Principles emphasize that restitution should include not only dignified handover but also the facilitation of adequate funeral ceremonies, covering the costs of transfer and burial when necessary, and avoiding re-victimizing practices such as lack of information or burial in mass graves without proper records.Footnote 116
The WGEID and the ICRC also emphasize the importance of ensuring the active participation of families in decisions about the fate of remains, and of promoting a comprehensive approach that addresses truth, reparation and memory.Footnote 117 This necessitates coordination among the involved institutions in order to prevent fragmentation and conflicts that affect the process. Additionally, unidentified remains should be treated with the same respect as identified remains, following procedures that allow for eventual restitution.Footnote 118 Dignified restitution is not merely a technical act but a deeply symbolic process that strengthens the relationship between the State, families and society in the pursuit of justice and truth.
Plans and protocols in Mexico, Colombia, Peru and Chile have incorporated various actions that align with international standards for the dignified restitution and burial of both identified and unidentified remains. In Mexico, the PHBPD establishes detailed processes for the dignified delivery of remains, while the coverage of funeral expenses and respect for the cultural and religious practices of families are regulated by law.Footnote 119 In Colombia, the National Search System provides assistance to territorial entities to incorporate into their planning instruments a line aimed at strengthening the management and protection of cemeteries containing the bodies of unidentified and/or identified unclaimed persons.Footnote 120 Additionally, there are distinct procedures for the dignified handover of remains, one led by the Attorney-General’s Office and another managed by the UBPD, reflecting complementary approaches to addressing this critical issue.Footnote 121 Peru adopts a humanitarian approach in its search protocol, which includes symbolic ceremonies and respect for the cultural traditions of the affected families, for both identified and unidentified remains.Footnote 122 In Chile, the National Search Plan promotes restitution with symbolic support and public recognition, encouraging the participation of relatives in decision-making regarding the fate of the remains.Footnote 123
Despite these advances, however, significant challenges remain concerning the burial of unidentified remains in each country. In Mexico, the CED and the WGEID have pointed out that unidentified remains are often interred in mass graves without adequate traceability, which hinders eventual identification.Footnote 124 In Colombia, meanwhile, there is a serious problem in cemeteries. The bodies of people who die in violent contexts must undergo a forensic autopsy to establish their identification. A huge number of unidentified bodies and unclaimed identified bodies were handed over to the custody of cemeteries in Colombia, but due to problems of non-compliance with current regulations or negligence in the management of corpses, so-called “administrative disappearances” have occurred – that is, the loss of information about the circumstances of death, burial and/or identification of such bodies. Cemeteries, therefore, have become places of possible disappearance, because the people sought may correspond to these bodies. It is thus essential that cemeteries be adequately protected and that they comply with conditions of respect for physical space and administrative information; preservation conditions, not being exposed to physical modifications due to environmental effects or other external or internal factors of the site; and custody conditions, adopting measures to guarantee the safety and possession of the body within the cemetery and the existence of an internal information system that provides data on the origin of the body.Footnote 125
International organizations have criticized these shortcomings in various countries, calling for improved inter-institutional coordination, the development of clear protocols, and the implementation of measures to ensure respect, dignity and the potential for future restitution of unidentified remains.Footnote 126
Reconstruction of the final fate of missing persons
One of the most problematic aspects of the search for missing persons is when it is objectively evidenced that it is highly improbable – or impossible – to find or recover the human remains of the victims. In this scenario, several dilemmas arise that have not been adequately or thoroughly addressed by international standards. One such problem is determining the criteria upon which it is acceptable to conclude that the recovery of remains is impossible. The CED Guiding Principles refer to the circumstances in which a disappeared person is not found but credible evidence exists, beyond reasonable doubt, regarding his or her fate or whereabouts.Footnote 127 For these cases, it is established that the search may be suspended when there is no material possibility of recovering the person, provided all attainable information has been analyzed and all possible hypotheses investigated.Footnote 128 This decision should be made with the informed consent of the relatives – but what should the State do if the relatives do not wish to cease the search? There is no clear answer to this question in international standards.
In fact, the international instruments also fail to specify what the State should do if the relatives consent to the suspension. From the analysis of the search plans in the countries under review, it can be inferred that the State should construct and provide to the relatives a narrative that outlines the circumstances or trajectories of the victim’s enforced disappearance, specifying, in as much detail as possible, the victim’s final fate. However, further questions arise regarding the content that such an account should encompass and the background and evidence on which it should be based. Additionally, how this information should be communicated to the relatives is a critical consideration. Furthermore, even if the relatives do not wish for the search to be suspended, it is questionable whether the State should still produce such an account and if it should be made public.
We contend that the analysis of the search plans does not yield clear and definitive answers to these dilemmas. Notwithstanding the above, to outline how the State should communicate the final fate of missing persons, we believe that it is essential to involve the relatives in the formulation of a protocol for this purpose, while considering the individual will of each family member in their respective situation.
The development of criteria addressing these issues is vital for assessing the effectiveness of search plans. In these situations, it is debatable whether forensic sciences should play a role, as their relevance might diminish with the confirmation of the impossibility of recovery. It appears that in such instances, the answers should be sought in other, more socially oriented disciplines. The forensic turn seems to have its limitations.
The results of the comparative analysis reveal that the countries under study have generally committed to international standards for communicating the final fate of missing persons, albeit with variations in specificity. In Mexico, the PHBPD states that if the final fate of an individual is definitively determined and recovery of remains is impossible, the search may be suspended with the relatives’ consent.Footnote 129 However, the General Law on Missing Persons prohibits the suspension of investigations and establishes that enforced disappearance crimes are permanent until the fate or whereabouts of the person are determined, or their remains are fully identified. Furthermore, the law reinforces the need for an exhaustive search conducted in coordination with the competent bodies until these objectives are achieved.Footnote 130
In Peru, the DGBPD issues humanitarian investigation reports to inform families about case conclusion in these scenarios, and organizes symbolic ceremonies to dignify the victim and provide comfort to family members who have been unable to recover their loved ones.Footnote 131 Institutions in Colombia assure families the right to know their loved one’s final fate and provide detailed reports when searches conclude without the recovery of remains, in accordance with international recommendations on transparency of information.Footnote 132
In Chile, the National Search Plan guarantees relatives the right to know the truth about their loved ones and encourages their participation in the investigation process.Footnote 133 However, the plan lacks a specific protocol for cases where it is concluded that the recovery of remains is impossible.Footnote 134 Although the right to truth is acknowledged, the plan does not establish uniform procedures for providing information in these contexts.
Despite the general alignment with international principles, some specific aspects could benefit from further development in each country. In Chile, the absence of a specific protocol for communicating the final fate of missing persons in situations where recovery of remains is not feasible limits the country’s alignment with international standards, which suggest detailed and consensual practices for these cases. While Peru provides humanitarian investigation reports, it could strengthen the systematization of its approach to ensure uniform implementation across diverse contexts, particularly in rural areas. In Mexico and Colombia, although protocols include family consent to suspend the search, these could benefit from further development to address cases where relatives do not agree to the suspension, an issue not fully addressed by current international standards. Clarifying these procedures would enhance respect for and guarantee the right to truth and reparation, whilst providing stronger support to relatives at all stages of the process.
Conclusions
This article has explored whether specific categories of international norms concerning the search, recovery, identification, and dignified restitution of the bodies of disappeared persons have been incorporated into national search plans. Specifically, it has analyzed elements such as the administrative search for disappeared persons, the creation of official victim lists and forensic site registries, the recovery and identification of remains, the preservation of evidence, and the restitution of bodies to their families. Through a review of documentary evidence, it was observed that best practices for managing the human remains of disappeared persons, as systematized in various international instruments developed by IHL and human rights bodies, have been normatively adapted into the search plans of four States undergoing diverse transitional processes.
Nonetheless, it is crucial to underline that this generalization applies only to the normative incorporation of international standards. Each country exhibits specific local conditions that shape implementation, and significant gaps remain between the norms formally adopted and their practical application. While the findings highlight the success of the international community’s efforts to establish consensus on best practices for addressing disappearances and their formal adoption in the cases studied, the reviewed reports show that many criteria have yet to be satisfactorily implemented in practice.
These findings may serve as a foundation for future socio-legal research, emphasizing that the effectiveness of national search plans depends not only on the formal adoption of international norms but also on their effective implementation, which is influenced by a variety of factors. Moreover, this study could mark an initial step toward developing a comparative database of national search plans in Latin America, contributing to the systematization and analysis of diverse regional experiences.
The insights gained provide a positive signal that, in recent years, the combined efforts of the international community, organizations of families of disappeared persons, human rights advocates, and civil society have fostered political will among States to implement search plans aligned with international humanitarian and human rights standards. However, achieving the goal of locating disappeared persons requires continued exploration and development of innovative search strategies tailored to the unique challenges of each national context.
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