4.4.1 Receiving and Dealing with Communications, Prompt Intervention Letters, Urgent Appeals, General Allegations and Referrals

In the context of its humanitarian mandate, the WGEID receives and examines communications (respectively handled under the ‘urgent’ or the ‘standard’ procedure, depending on when the alleged enforced disappearance commenced).Footnote ¹⁸ Pursuant to its methods of work, these communications must be submitted in writing, using a dedicated form, and, if the source of the communication is other than a family member, it must have the explicit consent of the family to submit the case on its behalf.Footnote ¹⁹

Besides some general problems concerning security, verification and accessibility, which will be analyzed below,Footnote ²⁰ the present section considers how new technologies, and in particular ICT, might have an impact on the format and modality of the submission of communications and on the expression of consent to submit a case, as well as the possibility that the WGEID applies new technologies, such as artificial intelligence or machine-learning, to analyze and deal with all the communications received and currently outstanding.

First, while today the submission of written forms can be processed either via email, regular post, the general online portal of Special ProceduresFootnote ²¹ or fax, one may wonder whether other channels (e.g., social media or messaging applications) could or should be also allowed. For instance, would a communication submitted to the WGEID in the form of a comment left in its Twitter account (now X) be regarded as valid and processed accordingly? At present, the answer would most likely be in the negative,Footnote ²² but the rationale for such a response does not seem to be particularly solid or elaborated, besides the fact that ‘this has never been done before.’ Whilst it would be interesting to verify how many communications have been submitted by fax to the WGEID over the past five years, one may argue that setting up a dedicated channel via messaging applications (e.g., WhatsApp or Telegram) might facilitate the submission of communications and be met with favour by potential users and the general public.

The requested written format – confirmed, in more general terms, in the 2008 manual of operations applicable to all Special ProceduresFootnote ²³ – is somehow controversial. Would the WGEID consider a video clip an acceptable format for the submission of a communication? If so, under which conditions? Along the same lines, would a video be considered a legitimate manner to express consent (of the family or of the disappeared persons themselves) to the submission of the case?

Although the WGEID methods of work are silent in this regard and there does not seem to be any consolidated practice on these matters, the notorious case of princess Sheikha Latifa bint Mohammed Al Maktoum comes to mind.Footnote ²⁴ In this instance, the princess had recorded a video,Footnote ²⁵ whereby she explained why she was at risk of being subjected to an enforced disappearance: in the absence of the consent of her relatives (who, in this very peculiar case, were also the alleged responsible for her disappearance, and, at the same time, should be considered as State agents), could the said video be regarded as the consent of the victim herself to have her case considered by the WGEID? Interestingly, the family of the princess rebutted the allegations that an enforced disappearance was ongoing by submitting pictures that would show Sheikha Latifa in good health and free.

Without entering into the intricacies of the specific case, which, because of its features, is quite unique, the reported example begs at least four questions: If the WGEID considers videos and pictures as valid as formularies and consent forms, at a time where deep fake imagery is less than uncommon, would the WGEID have the technical means and skills to assess the veracity and reliability of these sources? Indeed, if the person who recorded the video then disappears and relatives cannot be considered as reliable sources, who could be considered the ‘source’ of the communication, with which the WGEID will maintain its correspondence? If the WGEID is to accept videos and pictures as sources of communication, will it do the same with the answers provided by States? Finally – and more in general – would the WGEID be competent and in a position to search, motu proprio, for videos, pictures or digital data, among other things, to corroborate or reject the allegations received? None of these questions finds an answer in the methods of work and existing practice of the WGEID and a reflection and the establishment of a clear policy in this regard could be useful.

A separate issue, that nevertheless somehow relates to the actual scope of initiatives that the WGEID can undertake motu proprio, concerns the use of new technologies, such as artificial intelligence or machine-learning, to deal with, and analyze, the remarkable number of cases under active consideration, which, as of 13 May 2023, stand at 47,774.Footnote ²⁶ At present, the WGEID examines the communications received with a view at assessing whether they can be registered and transmitted. It equally reviews the responses received from States (or, where applicable, by other actors),Footnote ²⁷ in order to evaluate whether they allow to clarify the cases by establishing the fate and whereabouts of the disappeared person concerned. However, the WGEID does not proactively seek additional information on a specific case (e.g., by cross-checking through satellite images or similar),Footnote ²⁸ rather focussing on whether the allegations received are credible. Moreover, the WGEID has never examined the bulk of active cases as a whole or for each State to determine, for instance, the existence of specific patterns, relevant contextual elements or even information that may be instrumental in clarifying the fate and whereabouts of the disappeared and in promoting accountability for those responsible for the crimes.

It can be argued that these kind of proactive initiatives would most likely overstretch the boundaries of the mandate of the WGEID and, were they acceptable, they could have already been carried out by the Secretariat, without the need of any new technologies. The methods of work of the WGEID provide that the clarification of a case (i.e., establishing the fate and whereabouts of the disappeared person) can occur, among others, ‘as a result of missions by the WGEID’.Footnote ²⁹ While it is unclear whether such missions should be equated to the country visitsFootnote ³⁰ conducted by the WGEID (and it would not seem to be the case), the expression nevertheless suggests that the WGEID has some leeway to conduct investigations to clarify a case. It is however unlikely that the members of the WGEID and the Secretariat have the resources (human, technical and material) to perform these kind of investigations motu proprio on a systematic basis, especially bearing in mind the thousands of cases under active consideration.

Both for gathering information or conducting research that might clarify a case and for conducting a comprehensive and thorough contextual analysis of all the active cases before the WGEID, new technologies (in particular, the use of artificial intelligence, machine-learning tools and data mining techniques that can be set to process in a relatively short time-span a considerable volume of data and information) could be a game changer. If this is compatible with the mandate of the WGEID and feasible in terms of human and technical resources of the Secretariat remains to be determined and, in any case, seems worthy of consideration.

More in general, the questions formulated in the previous paragraphs and, in particular, the one concerning the admissibility and feasibility of research conducted motu proprio by the WGEID, may be referred also to its other procedures, namely urgent appeals, prompt intervention letters, general allegations, other communications and referrals.Footnote ³¹ These procedures range from communications sent to governments where a person is at risk of being forcibly disappeared (urgent appeals), to cases of intimidation, persecution or reprisal against relatives of disappeared persons, witnesses to disappearances or their families, members of organizations of relatives and other NGOs, human rights defenders or individuals concerned with disappearances (prompt intervention letters). They also encompass instances where there are alleged obstacles in the implementation of the 1992 Declaration (general allegations), or where detailed allegations are received that a State is practicing enforced disappearance or is about to adopt measures that could create obstacles to the implementation of the 1992 Declaration (other communications) or when the WGEID evaluates claims of practices of enforced disappearances that may amount to crimes against humanity and decides whether to refer them to international, regional or sub-regional authorities (referrals).

The procedures under consideration imply – to varying extents – the carrying out of information-gathering activities by the WGEID and the corresponding evaluation of its reliability. Indeed, it is clear that the WGEID cannot be equated to mechanisms such as the commissions of inquiry or fact-finding missions mandated by the Human Rights Council. The mandate of these organs is inherently different, and they are expected to proactively search for, examine and evaluate information and data that can be regarded as evidence of the commission of international crimes and gross human rights violations, paving the way to holding perpetrators accountable. To fulfil their tasks, commissions of inquiry and fact-finding missions have taken advantage of new technology, added specialized expertise and refocused approaches to information collection and management. In particular, they appreciated that ‘rapid changes in technology and ICTs have impacted investigations, opening up new channels of communication that in turn afford new kinds of access to sources’Footnote ³² and that ‘telephone, internet based communication tools (e.g. Skype) or related technology may assist in reaching otherwise inaccessible areas.’Footnote ³³ Accordingly, commissions of inquiry and fact-finding missions progressively incorporated in their staff (either counting on in-house knowledge or involving external experts) persons dedicated to conducting open source intelligence (OSINT), including on digital datasets or, where appropriate, satellite imagery.

For its part, the WGEID is not mandated, nor expected, to conduct investigations and collect evidence, be it to establish the fate and whereabouts of a disappeared person or to determine the identity of perpetrators or someone’s involvement in the commission of an enforced disappearance.

Indeed, in carrying out its mandate, the WGEID regularly assesses the ‘credibility’ of the allegations received, as well as the ‘reliability’ of the sources, always guided by its humanitarian nature and the pro persona criterion. Neither the methods of work of the WGEID nor the code of conduct for Special ProceduresFootnote ³⁴ or the 2008 manual of operationsFootnote ³⁵ clarify in detail how mandate-holders are expected to conduct their due diligence in evaluating these crucial aspects. Leaving aside for the moment the underlying – yet pivotal – issue of verification, which will be considered below,Footnote ³⁶ some considerations can be put forward on whether and how new technologies could be used in this crucial phase of the WGEID activities.

First, the WGEID performs research and information assessment, and, in this regard, as commissions of inquiry or fact-finding missions, it may benefit from, among others, OSINT. For such purpose, the WGEID should duly take into account the 2022 Berkeley Protocol on Digital Open Source Investigations, which contains a Practical Guide on the Effective Use of Digital Open Source Information in Investigating Violations of International Criminal, Human Rights and Humanitarian Law.Footnote ³⁷ The Protocol – directed at a broad audience, which can encompass also the WGEID – is designed to assist open source investigators to conduct their work in accordance with a professional methodology that is broadly consistent with legal requirements and ethical norms.

Second, the fast-evolving nature of the technologies must be considered. If the WGEID includes the use of new technologies in its assessment of the credibility of the information received, there should be a broader reflection on whether the members of the WGEID and its Secretariat have the technical knowledge and skills and sufficient human resources to deliver. Alternatively, assistance on these matters could be outsourced,Footnote ³⁸ although this might encounter – not necessarily insurmountable – problems in view of the confidential nature of most of the information dealt with by the WGEID.

Third, going beyond what the WGEID can – or should – do to ensure a broader use of new technologies in the performance of its mandate, in the context of most of the procedures here described, it regularly interacts with States and requests governments to carry out search activities and investigations and to inform it of the results. The WGEID will then assess the information provided by the State concerned, for instance, with a view to clarifying cases or evaluating the compliance with the 1992 Declaration. As of today, it does not seem that the WGEID has systematically included in its exchanges with States questions and recommendations on the use of new technologies in search activities and investigations. This option could be explored, with a view to ensuring the addition of this issue in a comprehensive and systematic way in the dialogue with States, ideally promoting the enhancement of the applicable standards.

A final remark that can be made concerns the recipients of the WGEID’s allegations or communications regarding obstacles in the implementation of the 1992 Declaration. In this sense, the traditional interlocutors of the WGEID are States.Footnote ³⁹ Nevertheless, Special Procedures can – and many regularly do so – address their communications and allegations also to stakeholders other than States, including corporations and technology companies.Footnote ⁴⁰ Hence, if the WGEID were to receive information according to which policies or practices of actors other than States – such as technology companies – are at odds with the 1992 Declaration or raise problems with regard to its implementation – for instance, through the use of digital tools of mass surveillance or spyware programmesFootnote ⁴¹ to target relatives of disappeared persons or their representativesFootnote ⁴² – it could address its allegations or communications to these other stakeholders concerned. At present, the methods of work of the WGEID neither contemplate nor rule out explicitly this possibility.

4.4.2 Country Visits

Another core procedure of the mandate of the WGEID is that of country visits,Footnote ⁴³ which it conducts upon invitation. Since 1980, the WGEID has carried out more than forty visits across the world.Footnote ⁴⁴ The main purpose of these visits is to, inter alia, enhance the dialogue between the authorities most directly concerned, the families or their representatives and the Working Group and to assist in the clarification of the reported cases of enforced disappearance. The Working Group also undertakes visits to examine the actions taken by States to prevent, investigate, punish and eradicate enforced disappearances and to search for disappeared persons, as well as the programmes and measures adopted to implement the Declaration and to guarantee the rights of, among others, the victims.Footnote ⁴⁵

In practical terms, during a visit, the WGEID meets with national and local authorities (including members of the judiciary, the executive and parliamentarians), members of the National Human Rights Institution, NGOs, associations of relatives of disappeared persons, the United Nations and other inter-governmental agencies and the press. Moreover, the WGEID often uses the opportunity of being on site to visit detention facilities (former or functioning), sites where exhumations have been, or are in the process of being, carried out, as well as memorials.

As of today, country visits and the ensuing reports and follow-up procedure are one of the areas where new technologies have played a very limited – if any at all – role and where, arguably, more could and should be done.

First, it does not seem that the WGEID has regularly included in its visits meetings with authorities and institutions that have a pertinent mandate (e.g., in charge of ICT, cyber-security, satellite imagery or development of artificial intelligence) or with experts in new technologies with knowledge of the country situation. The WGEID has not visited centres and sites that might hold valuable information and data related to these subjects. In view of future country visits, this is an aspect that holds some potential.

Second, more in general, pursuant to its methods of work, the WGEID’s approach to the gathering of information prior, during and after a visit can be regarded as slightly ‘passive’ rather than ‘proactive’, in the sense that it is open to collecting data, reports, testimonies and information that is brought to it from different sources – including, often, in response to calls issued by the WGEID itself – but it does not seem to foresee any direct ‘fact-finding’ activity or autonomous search and investigation. It is however to be assessed whether initiatives by the WGEID to search for, and gather, data and information during country visits motu proprio is to be ruled out completely. In fact, the terms of reference for country visits common to all Special Procedures require that States visited must guarantee that mandate-holders have ‘full access to all documentary materials relevant to the mandate’.Footnote ⁴⁶ This phrase may be interpreted in the sense that mandate-holders can identify the material that they consider to be relevant to the mandate, request it to the authorities of the State concerned, and the latter would be under an obligation to provide full access to such material. While it is rather clear that the terms of reference were not drafted thinking of data and information that can be gathered or stored through new technologies, one could argue that the expression ‘documentary materials’ can encompass satellite imagery, datasets, digital data or biodata to which the WGEID might wish to have access during a country visit. Indeed, the WGEID would then most likely need the support of qualified experts to analyze and interpret the material collected, but this relates to a more general need – which will be examined more in-depth later – to count on persons knowledgeable on new technologies who can be consulted by the WGEID, where necessary and upon request.Footnote ⁴⁷ Nevertheless, one can imagine that the kind of material mentioned, if duly analyzed, might shed light on crucial aspects of the search for disappeared persons, as well as provide useful information related to criminal investigations. This could be extremely useful in the assessment performed by the WGEID during a country visit and in the formulation of recommendations to be included in its report.

More in general, the WGEID could envisage systematically including a section in the reports on country visits whereby it examines the use (or lack thereof) of new technologies in the State concerned, duly reflecting its findings in the final recommendations. In this realm, the WGEID should consider the opportunity – prior, during and after a visit – to also gather information on the existing legislation (e.g., concerning data collection and management, regulation – including export and import – of digital surveillance programmes, or cybercrime), as well as on the contracts stipulated by the government concerned to acquire and apply, for instance, spyware programmes and data on the use and frequency of shutdowns or internet disruptions in the country. The information and data collected could be instrumental in the shaping of ‘tailored’ recommendations and eventually contribute to an overall better understanding of the relationship between new technologies and enforced disappearances.

Finally, it is worth mentioning that specific challenges related to new technologies might arise in the realm of country visits, especially with regard to security, but they will be analyzed below in the dedicated section.Footnote ⁴⁸

4.4.3 Awareness-Raising and Technical Cooperation

Like other Special Procedures, the WGEID is also mandated to engage in advocacy activities, raise public awareness and provide advice for technical cooperation. In particular, it can provide advisory services, when requested, and provide assistance to governments in the implementation of the 1992 Declaration. The thematic study on new technologies and enforced disappearances can certainly be regarded as a first concrete form of awareness-raising, but, bearing in mind the complexity and constantly evolving nature of the subject, it could be appropriate to design a more articulated strategy and set of activities over the next years.

The methods of work of the WGEID do not elaborate on the nature of the advisory services or the technical cooperation provided and the applicable requirements to activate them.Footnote ⁴⁹ So far, this has taken various forms, including trainings on enforced disappearances for public officials and law enforcement personnel, including judges; direct assistance to States in the process of drafting follow-up reports; or assistance on substantive matters such as draft legislation, the creation of mechanisms devoted to the search for disappeared persons or truth commissions.Footnote ⁵⁰

At the time of writing, the WGEID has not yet received requests to provide advisory services or technical cooperation on issues directly related to new technologies and enforced disappearances, be it on draft legislation or in the sense of how these can be used to hinder the work of civil society organizations and relatives of disappeared persons or to facilitate the search for disappeared persons and to obtain evidence of the commission of the crime and ensure accountability.

Arguably, it is rather likely that the WGEID will receive requests in this sense in the future, and it is therefore necessary to assess whether it counts on the resources and necessary expertise to deliver on a regular basis. The answer to this question will be somehow influenced by the composition of the WGEID and its Secretariat. Currently, members of the WGEID and of the Secretariat could undisputedly assist on human rights–related issues and may be apt to provide advice relating to the pertinent legal framework or the applicable criteria to assess evidence collected and secured through new technologies. However, they lack an actual background and deep technical expertise on technological matters. Similarly, even if one of the members or of the Secretariat were an expert on digital forensics and biodata, for instance, they may not be equally knowledgeable on artificial intelligence or machine-learning. This can indeed be seen as an area where capacity building and strengthening are in order, although it remains to be determined whether members of the WGEID or its Secretariat would be those better placed to provide advice or technical cooperation on technological matters, or they should rather rely, for such a purpose, upon experts with a different profile, either from within the OHCHR or, where appropriate, externally.

In one of the above-mentioned reports, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions recommended to the OHCHR to appoint a digital content specialistFootnote ⁵¹ to provide advice with respect to information received from or produced by civilian witnesses and to serve as an interface with external networks of expertise in that area.Footnote ⁵² However, the Special Rapporteur considered it as a ‘stopgap solution to ensure quick movement’, thus calling on the OHCHR, with the assistance of the appointed specialist, to establish a ‘longer-term capacity’.Footnote ⁵³

As already mentioned above,Footnote ⁵⁴ international commissions of inquiry and fact-finding missions today rely upon experts to analyze, for instance, the digital evidence received. However, this staff is appointed to serve these mechanisms and cannot be properly regarded as ‘in-house expertise’ that could support also other organs – including the WGEID – in performing their mandate.

Bearing in mind the fact that new and emerging technologies go beyond digital content and communication technologies, and that, as pointed out, it is virtually impossible to find one person who is proficient on all the relevant areas, the creation of a roster of experts in new and emerging technologies could be envisaged. Ideally, their support could be obtained on demand by the different United Nations’ human rights mechanisms (Special Procedures and Treaty Bodies) in need. In the case of the WGEID, it could consider to team up with one or more experts for the purposes of, among others, providing assistance and technical cooperation to States or other stakeholders on issues related to new technologies and enforced disappearances.

4.4.4 Security, Verification and Accessibility

As anticipated in the previous sections, in light of the current situation and the opportunities concerning the use of new technologies – admittedly, mostly ICT – in the performance of the mandate of the WGEID, the challenges – existing and potential – are cross-cutting and revolve around the three main areas of security, verification and accessibility.

With regard to security, the whole sphere of digital risks is to be considered, thus encompassing data security, as well as surveillance and digital threats both towards the members of the WGEID and the Secretariat and any person engaging with the WGEID.

The WGEID regularly receives, deals with and stores sensitive information that, if unduly disclosed, could seriously endanger the security of several people, including persons or groups of persons in situations of great vulnerability. One major challenge is therefore maintaining the confidentiality of such information and protecting it from any sort of threat, including cyber-attacks. The risk is – unfortunately – a very concrete one, as shown by the incident that occurred on 18 January 2022, where personal data and other confidential information concerning more than 515,000 people worldwide, stored in the systems of the Central Tracing Agency of the International Committee of the Red Cross were accessed.Footnote ⁵⁵ On such occasion, among others, platforms containing data on missing and disappeared people, as well as their relatives (including the ‘Family Links Answers’ application and Website, and the platform ‘Trace the Face’) were compromised. The investigation on the attack showed that it was a very sophisticated one, conducted with the objective of data extraction.Footnote ⁵⁶

The WGEID holds very similar information, gathered for analogous purposes. This begs the question of preparedness: Has any measure been put in place, by the WGEID or the OHCHR more in general, to mitigate this risk? Was a cyber-attack on the WGEID database to happen, would there be a security scheme ready to kick in, while ensuring the continuation of critical functions? Fundamental measures of protection of the data received are certainly in place, but a reflection on whether they would be adequate and up-to-date in the face of rapidly emerging and ever-changing technological threats seems in order.

Moreover, it is pertinent to consider whether suitable measures are in force to protect both members of the WGEID and its Secretariat and all persons that engage with it – especially relatives of disappeared persons and their representatives – from forms of digital surveillance (such as spyware programmes) and disinformation or smearing campaigns, including on and through social media.

These kind of considerations shall be extended to those who engage with the WGEID in different contexts, including prior, during and after country visits, and, although the subject might have been dealt with on an ad hoc basis, a more systematic approach and a transparent policy seems desirable and should be applied coherently in the implementation of all the procedures of the WGEID. Furthermore, especially with regard to interactions with human rights defenders, activists, civil society organizations and, in particular, relatives of disappeared persons, the WGEID might wish to adopt a more proactive stance and, when contact is established for the first time, share a general warning on the existence of digital threats, along with a reference to (external) resources that can help these stakeholders protect themselves and (more) securely engage in exchanges with the WGEID.

With regard to verification, it has already been pointed out on multiple occasions that, albeit lacking a full-fledged investigative mandate, the WGEID regularly evaluates the reliability of its sources and credibility of the information that it receives from sources, States and any other stakeholder. As with the other Special Procedures, the WGEID is requested to rely on ‘objective and dependable facts based on evidentiary standards that are appropriate to its non-judicial character’.Footnote ⁵⁷

Hence, although the applicable standards are not those of a courtroom, the WGEID is expected to at least perform its due diligence in corroborating the information received.Footnote ⁵⁸ In an era characterized by the use of fictitious accounts and deep fakes, or in situations of metadata paucity, this may prove especially challenging, in particular where there may be a lack of expertise of the members of the WGEID and its Secretariat on the matter, while, in parallel, relevant tactics and tools evolve at an extremely rapid pace.Footnote ⁵⁹ So far, the WGEID has not encountered any specific obstacles in this realm, but for the future further reflection and consideration on how to mitigate potential risks, it could be desirable.

When it comes to accessibility, it must be pointed out that, while new technologies – in particular in the ICT sphere – may play a key role in facilitating access to the WGEID and the use of its procedures – this may not apply in the same terms worldwide. At a time where there still are several coverage gaps, internet shutdowns are increasingly used to curb dissent and to silence human rights defenders, and a significant uneven adoption of ICT among population still exists, gearing all efforts of the WGEID to the use of digital technologies might result in being detrimental and discriminatory. In this sense, and more in general, bearing in mind the dual relationship between new technologies and human rights and the considerable – and certainly legitimate – expectations that the use of technologies may raise, the need for complementarity must be recalled. New technologies cannot – and should not – replace pre-existing strategies, procedures and approaches but must rather sum up them and enhance the likelihood to obtain significant results, in the case of enforced disappearance facilitating the clarification of cases, favouring accountability and enhancing the applicable legal standards.

Finally, another tenet of accessibility, equally regarding members of the WGEID, its Secretariat and all those stakeholders that engage with the WGEID, relates to the – arguably still limited – level of digital literacy and, more broadly, knowledge and understanding of new technologies – including others that go beyond ICT – and the corresponding implications. At the time of writing, this appears as a major loophole that would need to be adequately addressed before stepping up the use of, and reference to, new technologies, in the day-to-day activities of the WGEID.