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LOSS OF PERSONS REASONS AND MEASURES TO PREVENT LOSS OF PERSONS IN INTERNATIONAL HUMANITARIAN LAW
MARYAM MAJID HAMAD1, GOLAMALI GHASEMI2
Research Doctoral Student, Department of International Law, Faculty of Law, University of Qom, Iran. Email: maryammajedhamad@gmail.com International Law Department, Faculty of Law, University of Qom, Qom, Iran. Email:
ghasemi43@gmail.com
Abstract
The disappearance of any missing person constitutes a tragedy for the individual himself and his family, which suffers from the lack of knowledge of his fate, as the phenomenon of loss has constituted one of the biggest human tragedies in many countries, and the suffering of those exposed to him and their families has increased, especially in the absence of pain from what happened to the husband, child, father, mother, brother or sister This, in turn, may lead to the risk of a contradiction in external relations, which in turn may lead to exposure to great danger in the local community, In the case of questioning whether its members are alive or dead, and moving forward becomes difficult for them because of their inability to forget the events that destroyed her life, other than the problems they face on the psychological, legal and economic levels, and their psychological suffering continues because of the wounds left by their disappearance. One of the family members, and this is one of the reasons why the social fabric is not healed, and that the subject of loss has been included in many legal and social studies, due to the spread of this phenomenon, which necessitated the establishment of measures to prevent their loss, which was represented by states spreading the rules of international humanitarian law, Conventional and customary international humanitarian law gives great importance to the issue of missing persons due to armed conflicts, whether international or non-international, and the adoption of bodies concerned with registering requests for loss and expediting search procedures and reuniting families separated due to wars or internal disturbances and tensions, by working on recording and sending information related to prisoners and detainees, and ensuring the exchange of family news, as well as searching for the missing and ensuring their right to know the fate of their missing persons, and establishing an official department for the registration of cemeteries. Keywords: armed conflicts, missing persons, international humanitarian law, International Committee of the Red Cross
INTRODUCTION
Every year, thousands of people go missing for reasons, most notably armed conflicts, situations of violence, internal unrest or disasters. The circumstances in which people go missing may vary, as families are separated due to hostilities and violence, or when people flee their homes across international borders, which may It leads to cutting off the means of communication, and in battle, members of the armed forces of states and members of non-state armed groups may go missing, as well as persons who are detained, detained, or placed incommunicado.
And since the identification of human remains is considered an essential part of the process of healing the wounds of the families of the victims, the development in the science of forensic medicine through DNA analysis, through which the families of the victims can determine the fate of their relatives, and the families suffer great suffering because of not knowing whether their relatives are Alive or among the dead.
They make desperate attempts to find them, and they live in oblivion for many years, even decades. The uncertainty of knowing what happened to their families can lead to serious psychological and social consequences for them, such as the difficulties that appear in the beginning of coexistence with feelings of sadness, and it can also lead to the disruption of the family structure.
Therefore, international humanitarian law seeks, in armed conflicts, and international human rights law, in times of war and peace alike, to prevent persons from going missing and to reveal the fate and whereabouts of those who went missing. In this regard, it is necessary to ensure the implementation of the rights and obligations stipulated in these two laws. At the national level, through the adoption of appropriate local laws and policies, which include the establishment of appropriate structures, procedures or mechanisms.
What are the reasons for the loss of people and what are the measures that prevent their loss? Another problem arises, represented in the absence of an international convention on missing persons, in addition to the absence of a law at the national level concerned with issues of the rights of missing persons and their families that need support, as the phenomenon of losing people due to armed conflicts constitutes one of the most severe human pains, as the fate of these people remains unknown for long periods. Mostly, which generates suffering for people and their families, whether they are missing, alive or dead, and the most important problem in armed conflicts is the loss of people due to the dispersal and disintegration of families due to the ferocity of armed conflicts, which are realistic and tragic problems. The problem of missing people due to armed conflicts is a problem with great humanitarian dimensions that entails many tragic effects, exposing the missing persons to destruction and physical, physical and psychological harm, and exposing their families to greater suffering while they suffer from searching and waiting for a long time to know the fate of their children. The issue of the causes of loss and measures to prevent the loss of persons is of great importance, as its importance is evident in the development of appropriate mechanisms to prevent the disappearance of persons, dealing with them and resolving them, and ensuring that the state takes the necessary steps required to deal with cases of missing persons.
CAUSES OF LOSS AND MEASURES TO PREVENT LOSS OF PERSONS
In fact, the humane treatment stipulated in international humanitarian law requires the parties to the conflict to cooperate in searching for missing persons and exchanging information about them. About the dead and preventing their sanctities from being violated and performing the last ceremonies for them in a dignified manner) and this does not cause problems because the search for the dead and the transfer of their remains takes place within the territory of one state, and then the proximity of the place makes it easier for relatives to reach the graves of their relatives, as the text mentioned above does not provide guarantees and rights Accordingly, we will deal with the causes of loss and measures to prevent the loss of persons according to the following and as follows:
1. Causes of loss
The causes that lead to the loss of persons are many and differ in terms of severity and serious effects according to the circumstances of the loss. In the light of the foregoing, we can determine the following reasons by dividing this requirement into two branches. In the first section, we will explain the reasons related to the armed conflict, and the second section will explain the reasons related to violence. Procedure, and natural causes in Section III 1.1 Causes associated with armed conflict
There is no doubt that armed conflict, both international and non-international, is one of the most prominent causes that lead to the loss of people (1).
In the context of the armed conflict, we can refer to two main reasons that result in the loss of people, which are the two cases of internal displacement and the state of asylum. It is known that one of the most important tragic consequences of the armed conflict is the displacement of civilians, either forcibly or due to the conduct of military operations, which is the deportation of the civilian population. In the context of armed conflict, forced displacement is criminalized by international humanitarian law, unless the justifications for deportation are permitted by military necessity or to protect the security of the civilian population (2) and in the case of internal displacement, displaced persons (3 ).
At risk of missing out and there are many evidences of this in areas of armed conflict in the world, the International Committee of the Red Cross recorded about 22,000 missing persons in Nigeria, which is the highest and highest open record of cases we have of any country in the world, more than half of this number were minors at the time of their disappearance There is no doubt that the number of missing persons indicates the nature of the conflict in Nigeria, and the different ways of separating families. Some cases are attributed to kidnappings, while others may be cases of detainees whose families do not know their whereabouts. Fighters may be lost in battles, but people are also lost in the chaos of flight. From the violence, nearly two million people have been displaced inside Nigeria due to the conflict (4 ) With the exacerbation of the displacement crisis in the Democratic Republic of the Congo, thousands of people are believed to be missing, and UNHCR periodically visits displacement
1 What is meant by international armed conflict is a state of declared war or any other armed conflict that arises between two or more states, such as belligerent occupation or national liberation wars, and the warring parties must apply the provisions of international humanitarian law, whether they acknowledge the existence of the conflict or not, and its application does not depend on the existence of a declaration prior to war.
2 See Article (49) of the Fourth Geneva Convention, Article (85) of the First Additional Protocol, Article (17) of the Second Additional Protocol, and Rule (129) of the customary rules of international humanitarian law.
3 The internally displaced person means "that group of people who are forced to leave their homes and places of residence or residence to escape because of fear for their lives or their exposure to persecution and harm, due to the existence of an armed conflict or other serious disaster, whether by nature or by human action, see, d. Abdullah Ali Abbou, International Protection for Internally Displaced Persons, published research, in the Journal of Scientific Research in Law and Political Sciences, published by the Faculty of Law and Political Sciences, Ibn Khaldun University, Tiaret, Algeria, Issue 2, October, 2015, p. 6
4 Missing Nigerians, "My heart feels that my daughter is still alive," an article on the International Committee of the Red Cross website, the date of the visit 9/7/2022 https://www.icrc.org/ar/document/nigerias-missing-i-feel- it-my-heart
sites and helps to identify unaccompanied or separated children in order to obtain better protection and eventually be reunited with their dependents (5 ).
After the terrorist organization ISIS took control of the city of Mosul in 2014, and the displacement of Yazidi families from Sinjar district and their stay for more than seven days in the mountains, many cases of loss occurred, especially young children who lost their families during the flight from Sinjar ( 6)
And the war in Mosul caused the loss of dozens of people, including children, after they were killed or their families fled, and where there are no efforts to find them, and there are dozens of families who do not know the fate of their children (7 )
In Syria, the armed conflict has led to the displacement of many residents from their areas of residence since the outbreak of the war in Syria in 2011, as the issue of missing persons due to the Syrian conflict is one of the most important and complex issues, as their families have been dispersed all over the world, and members of other Syrian families have been separated from each other. each other because of displacement, asylum and migration (8 ) The United Nations Children's Fund announced that, five years after the war broke out for the first time in southern Sudan, there are still 15,000 missing persons, including children separated from their families or missing, and said that each reunification process is the result of months, and often years of work and tracking of individuals. missing family (9 ).
As for asylum, it is a major cause of loss of persons when asylum is in circumstances of armed conflict accompanied by fear, persecution, and mass flight to other countries. For example, the European Federation of Missing and Sexually Exploited Persons mentioned 10,000 refugees, including children who went missing in Europe, and explained that These children evade security and social interests because of the administrative complexities they encounter, and a campaign was launched to draw the attention of government officials in Europe to the situation of these (10)
International humanitarian law is no longer confined to the existence of a state of war based on its formal concept in the Hague Law, after the text of the agreement disassociated the conduct of war with any policing action such as declaring war or the like, as may be required by the Hague Regulations if it is to exclude the implementation of international humanitarian law, based on the traditional concept. The state of war is not recognized by belligerents^11)
5The mothers of the missing Congolese children remain silent, published on the following website, the date of the visit 9/7/2022 https://www.unhcr.org/ar/news/stories/2018/7/5b3e0a5b4.html
6 The International Commission on Missing Persons, Iraq programme, is available on the official website of the Commission
777 See, The Independent International Commission of Inquiry on the Syrian Arab Republic, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, March 11, 2021, p. 2
8 See, International Committee for Missing Persons, Iraq Program, previous reference
9 The Restoring Family Links Strategy and Implementation Plan for the International Movement of the Red Cross and Red Crescent, 2008/2014, General Report, Council of Delegates 2007, p. 2
10 Report of the United Nations High Commissioner for Refugees and Returnees, General Assembly of the United Nations, 51st session, item 105, agenda statement of the International Committee of the Red Cross, New York, October 31, 1996
11 See, Ansaf Bin Amran, The Role of the International Committee in Implementing the Rules of International Humanitarian Law, Dar Al Khaldounia, Algeria, 2012, pg. 64.
Perhaps the objective concept brought by the aforementioned article, or rather the objective definition of war as a realistic situation, may help the implementation of international humanitarian law, in all cases in which armed conflicts break out and outside any formal consideration that makes the establishment of the war condition subject to the fulfillment of primary legal requirements such as the prior declaration of war accompanied by a warning. It does not involve any ambiguity in expressing the purpose of war, and certainly the idea of armed conflict itself is comparable to the Hague Law, if we take into account the effects that result from conditioning a situation as war with regard to the basic areas that are particularly affected by the validity of the situation of war, such as the application of the law of war or the law of conflicts armed forces in the field of hostile operations between belligerents (12). And since the international humanitarian law of armed conflicts, including the laws and customs of war contained in the Hague Regulations of 1907, applies in all cases of armed conflicts that are not accompanied by a declaration of war, the latter will produce the effects that will be produced by the situation of declared war based on their formal understandings in the Hague Law, and as the implementation is impartial. International humanitarian law from any requirement for any objective element related to the establishment of the war situation, its implementation does not depend on the requirement of any specific objective element agreed upon by consensus in general as a necessary element for the existence of an international armed conflict, which in turn must be in the clearest cases of the traditional understanding, that is, to include the conflict between the armed forces of two countries (13 )
And that the forms of international armed conflicts did not stop, according to what was stated in the four Geneva Conventions, whose provisions covered all international armed conflicts. Rather, new provisions were added that were guaranteed by the First Additional Protocol. We find that they included armed conflicts through which peoples fight against colonial control, foreign occupation, or regimes. Racism in the exercise of its right to self-determination (national liberation wars), which rose to the level of armed conflicts led by national liberation movements (14 ).
There is no doubt that the international rules enshrined in the Geneva Conventions of 1949 and the two Protocols of 1977 for missing persons, as the rules of international law on international armed conflicts necessarily decide to search for missing persons (wounded, shipwrecked, etc.), which the hostile party claims they are, by taking every Appropriate procedures to achieve this
(15)
In our humble opinion, the absence of an explicit provision regarding missing persons during armed conflicts in all four Geneva Conventions of 1949, whereby Article (140) of the Fourth Geneva Convention of 1949 indicated that a central agency should be established in a neutral country to inquire about protected persons, especially regarding detainees, and it proposes The International Committee of the Red Cross, if the concerned country deems it so, should organize
12 See, Ali Awwad, Excessive Violence, Law of Armed Conflict and Human Rights, Dar Al-Muthaf, Lebanon, 1st edition, 2001, p. 186.
13 See Sameh Jaber Al-Beltagy, previous reference, p. 118.
14 see, Dr. Nawal Ahmed Basaj, International Humanitarian Law and the Protection of Civilians and Civilian Objects in Armed Conflicts, 1st Edition, Beirut, Al-Halabi Human Rights Publications, 2010, p. 55.
15 Dr.Ahmed Abu Al-Wafa, Categories covered by the protection of international humanitarian law, Cairo, International Committee of the Red Cross, 2006, p. 164
this agency, which could be similar to the agency stipulated in Article (133) of the Geneva Convention relating to the Treatment of Prisoners of War dated 12/August/1949, and this agency undertakes the collection of information of the stipulated nature. In Article (136), which you can obtain through official or private channels, and transfer it as soon as possible to the country of origin or residence of the designated persons, except in cases where such transfer may cause harm to the persons to whom this information relates or to damage their families, and the parties to the conflict shall provide the Agency with all reasonable facilities to enable it to carry out the transfer of information (16). 1.2 Causes associated with domestic violence
Cases of internal violence, or as some call them the gray areas between international humanitarian law and international human rights law, are meant by internal situations that lack peace and security, and at the same time have not yet reached the stage of armed conflict, meaning that they reach the stage of intense, organized and long-term fighting, including Sufficient to describe the phenomenon as a civil war from all aspects, as it is the stage of "no peace and no war" and its situation seems ambiguous from all sides, which confirms the difficulty of confronting the conditions that prevail because it is related to the multifaceted crisis and appears primarily as an institutional crisis, but it is also economic, social, and humanitarian (17).
This type of conflict represented a challenge to international humanitarian law, given the special legal nature enjoyed by the common Article 3, which contained moderate rules.(18) In such cases, many violations occur against individuals, including their exposure to loss, and although international humanitarian law removed these cases from the scope of its application under the Second Additional Protocol of 1977, the protection of the victims of these cases is guaranteed by international human rights law (19 )
Throughout its history, many countries have faced internal tensions and disturbances that were sometimes so serious that they threaten their basic interests. These cases, which are often characterized by acts of rebellion and violence, and are committed by organized groups to some extent fighting the authorities or fighting among themselves, differ from the cases called noninternational armed conflicts, as violence is Where more severe, to put an end to these internal confrontations and restore order, the authorities often use police forces extensively or even armed forces, and the inevitable result is the weakness of the rule of law with serious and
16 See, Article (140) of the Fourth Geneva Convention of 1949
17 See, Talal Muhammad Al-Haj Ibrahim, and Maya Al-Dabbas, the gray areas between international humanitarian law and international human rights law, an analytical study, University of Sharjah Journal of Legal Sciences, Volume 15, Issue 1, 2018, pp. 203-204
18 See. dr. Adam Abdel-Jabbar Bidar, Protection of Human Rights during International Armed Conflicts between Sharia and Law, previous reference, p. 26
19 Whereas, the second paragraph of Article 1 of the Second Additional Protocol of 1977 excluded these cases from the scope of application of international humanitarian law, as it stipulated that "this protocol does not apply to cases of internal disturbances and tension, such as riots, acts of rare incidental violence, and other acts of a similar nature that are not considered armed conflicts
widespread violations of human rights, which leads to widespread suffering among the population (20 ).
Unrest may involve high levels of violence, and even non-state actors may be well-organised, and it is sometimes difficult to define the line between internal disturbances and tensions and armed conflict, and the severity of violence is the main determining factor in this regard.(21) According to the draft articles on state responsibility, endorsed by the UN Human Rights Committee, which stipulates that a state of emergency may not be imposed by a government unless it is "the only way to protect essential interests... against grave and imminent danger" ( 22)
The seriousness of the situation must reach the point where there is no escape from resorting to legislation and emergencies in order to maintain public order and avoid any threat to the existence of the state. To monitor its implementation earlier or later, and to be composed designed to be applied as a transitional measure (23 )
In its decisions on the minimum humanitarian rules that have been adopted in recent years, the Human Rights Committee recognizes the utmost importance of appropriate national legislation to deal with emergencies, while respecting the rule of law, and it calls on states to reconsider their legislation in order to ensure it.(24)
And raised in 1949 for the first time the question of whether certain rules of international humanitarian law should be expanded to include internal violence, and that Article (3) common to the four conventions related to non-international disputes, the absence of any definition of this category of disputes raised fear among many delegations that The scope of its application may extend to any action based on force, including any kind of political chaos or rebellion (25). And Article (3) lays down the rules that the International Court of Justice describes as general principles of international humanitarian law (26)
There is no room for doubt that it is capable of improving the protection of persons who fall under the trap of internal tensions. Since then, several formulations that have been prepared as individual initiatives have taken the rules included in Article (3) and the provisions of Article (75) of Additional Protocol I as a basis for strengthening the protection of persons. Those
20 See Jamshid Mumtaz, Humanitarian rules applicable in periods of tension and internal conflict, Journal of the International Committee of the Red Cross, Issue 324, published on the following website, date of visit 9/7/2022 https://www.icrc.org/ar/doc/resources/documents/misc/5ynjfg
21 See, Violence and Resorting to Force, International Committee of the Red Cross, Geneva, 2015, p. 6.
22 See, the report of the International Law Commission on the work of its forty-eighth session, May 6, 1996, and also the United Nations Document, 10/51 \, p. 137
23 See , Nicole Casteau, Study of the effects on human rights as a result of recent developments, United Nations Doc. 27, 15/2/1982, p. 8
24 See, Report on the International Workshop on Minimum Standards of Humanity "Cape Town, South Africa, September 27, 1996, and also the United Nations Document, January, 1997. E/CN.4/1997/77/Add.1, 28
25 See, Theodore Meron, Human Rights in Internal Conflict, International Protection, Grotias Publishing, Cambridge, 1987, p. 52
26 See , Peter Gasser, A measure of humanity in internal disturbances and tensions, a proposal for a code of conduct, International Review of the Red Cross, p. 262, January, 1988, p. 43
affected by internal violence, by giving them additional guarantees during detention or trial (27).
For his part, Hans-Peter Gasser, editor-in-chief of the International Review of the Red Cross, prefers the existence of a code of conduct that serves as a reminder of the existing rules binding on the parties involved in situations of internal conflict (28).
What concerns us about these cases is talking about people who are missing because of them, as these cases are a fertile environment for people to be subjected to loss, and despite the cases of internal violence that do not rise to the level of non-international armed conflict and therefore do not apply to them the rules of international humanitarian law, but that means the absence of humanitarian standards in dealing With these cases, where there are minimum standards to deal with them in order not to prejudice the rights of individuals, to protect the victims during them (29 )
In our humble opinion, the special legal nature of this type of conflict, which posed a challenge to international humanitarian law, which removed it from the scope of its application, as it posed a real danger to the groups affected by internal violence, because, as it is known, the rules of international humanitarian law are binding on all countries, and the lack of inclusion of these People within the scope of protection established in international humanitarian law means that the governments of those countries may not find what it takes to harness their capabilities in order to know the fate of people who have gone missing as a result of violence and internal unrest. They may even abuse their authority and not disclose the party where people are because there is no international text. Binding, although international human rights law has included this category within the scope of its protection. 1.3 Natural and other causes of missing persons
All emergencies, whether they are rapid natural disasters, often lead to the separation of families in the midst of chaos to save lives or escape, and in times of major humanitarian crises, as happened in Haiti in the aftermath of the January 2010 earthquake, thousands of people may be separated from their families, and the longer the separation People from their families, the more difficult it is to find them and the greater the possibility of missing children being exposed to economic and sexual exploitation, abuse and trafficking, and in the midst of emergencies, children want to be with their families, and UNICEF works to provide unaccompanied and separated children with services aimed at reuniting them with their parents, or caregivers Ordinary care as soon as possible, in coordination with government authorities, and if there is a need to arrange temporary care, UNICEF encourages it to be provided in a way that preserves the unity of families during the emergency phase (30 ).
27 See, Stephen Marx, principles and standards of human rights in the region in emergencies, in Karel Vasak's book, International Dimensions of Human Rights, UNESCO, Paris, 1978, 218.
28 See, Marion Haroff Tavel, Measures Taken by the International Committee of the Red Cross in Cases of Internal Violence, International Review of the Red Cross, p. 294, May, 1993, pp. 195-220
29 This was mentioned in a declaration on the minimum humanitarian rules applicable in periods of tension and internal conflict, Journal of the International Committee of the Red Cross, previous reference.
30 See, Sherine Ahmed Abdi, International Protection for Missing Persons, University of Dohuk, Kurdistan Region, research published in the Journal of Legal and Political Research, Volume 3, Issue 16, dated 2-6-2021, p. 93
International instruments oblige a country that is in a state of internal conflict not to prejudice
some human rights rules to ensure that fundamental rights are not violated in any circumstances (31)
The rules that are frequently mentioned are the right to life, the prohibition of slavery, the prohibition of cruel and inhuman treatment, and the prohibition of enforced disappearance (32). According to the draft articles on state responsibility approved by the United Nations Human Rights Committee, which stipulates that a state of emergency cannot be imposed by the government unless it is the only way to protect basic interests against grave and imminent
danger (33)
And that most of the human rights instruments that authorize the participating countries to abide by their obligations during periods of crisis enumerate the rules that it is forbidden to deviate from in any circumstance (34)
Because adherence to these rules provides the best protection against the most serious violations of human rights, and the rules that are frequently mentioned are the right to life and the prohibition of cruel, inhuman, or cruel and degrading treatment (35) The rules that cannot be avoided and enshrined in the constitutions of countries are known as the basic rules, and they are an integral part of public international law (36). In our humble opinion, natural disasters constitute the most serious causes that lead to the loss of people, such as what happened in Turkey and Syria, in terms of the loss of dozens of people as a result of the violent earthquake that occurred on 7/2/2023 on Monday morning, as the fate of many families who were under the rubble and caused homelessness was unknown. Families and their separation, especially cases of missing children, and because of the political conditions that Syria is going through and the lack of sufficient capabilities to search for people, as there are still dozens of people whose fate is unknown until this day 12/2/2023. 2- Measures to prevent missing persons
Preventive measures for the issue of loss represent one of the main factors that work to reduce the number of missing persons and serve as a safety valve and a proactive line of defense for this problem. Human life, his right to physical integrity, the right to freedom and security, the right not to be subjected to enforced disappearance, the right to a fair trial, and we cannot forget the right to respect for personal and family life.
Accordingly, in this demand, we will address the issue of respecting and disseminating the rules of international humanitarian law, the right to family reunification, and the right to know the truth.... and that is in six sections, as follows:
31 See, Human Rights Committee, Decision No. 21 of April 11, 1997
32 See, Theodore Meron, A Humanist Declaration Concerning Internal Conflict, American Journal of International Law, Vol. 78, 1984, pp. 859-868
33 See, the report of the International Law Commission on the work of its 48th session, May 6, 1996, United Nations Document 10/51, p. 137.
34 See, Article (4), the International Covenant on Civil and Political Rights, and Article (15) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and Article (17) of the American Convention on Human Rights
35 See, Theodore Miron, Human Rights in Internal Conflict and Global Protection, Grotheis Publishing, Cambridge, 1987, pg. 52, and Hans Peter Gasser, A measure of humanity in internal disturbances and tensions, a proposal for a code of conduct, International Review of the Red Cross, No. 262, January 1988 , p. 43
36 See, Karel Fask, International Dimensions of Human Rights, UNESCO, Paris, 1978, pg. 218
2.1 Respect and disseminate the rules of international humanitarian law and guarantee basic rights in international human rights law
The national obligations regarding the issue of the missing are closely related to the provisions of international humanitarian law and the rules of international human rights law, and with regard to international law, the first polytheistic article of the four Geneva Conventions of 1949 obligated the state parties to respect and ensure respect for the rules of these conventions in all circumstances (37 )
It should be noted that this obligation imposed on all states parties to the treaties allows the state to demand from others that commit violations of its promises by demanding that they stop committing them (38 )
In order to ensure respect and guarantee respect for the rules stipulated in these international documents, the four Geneva Conventions of 1949 and the two Additional Protocols of 1977 obligated the party states to publish these rules as a first step and on a large scale for the military as well as for civilians, in times of peace and times of international and noninternational armed conflicts, in texts The articles, respectively, are (47, 48, 127 F (1), 83 F (1), 19).
The obligation to publish and inform the different segments of society, not only the military category, and leads to knowledge of the existence of criminal acts that entail not only human suffering, loss of life and damage to property, but entails penal responsibility for them, which indicates the possibility of avoiding both matters by avoiding the commission of these acts, and that knowledge is what enables the victims Then from claiming their rights to compensation and moving the criminal responsibility of the perpetrators ( 39)
Thus, the teaching process constitutes an essential pillar of knowledge of this law for the target groups.
We affirm that the issue of respecting these rules and ensuring respect for them is very interesting and not easy, and requires a study that focuses on the categories of civilians included, the military, and members of medical and religious services in peacetime. That publishing and media in peacetime and on the widest scale will bear the desired fruits through understanding and knowledge (for man is an enemy to what he is ignorant of) (40). In addition, it is difficult, if not impossible, for the soldier and the general to understand the rule of distinguishing between military targets and civilian objects, or to take precautionary measures before launching an attack and for a battle to take place.
The responsibility for publishing, media and training is an inherent responsibility that lies with states and the parties to the conflict at the same time. The rules of international human rights
37 See, Article 1 stipulates that "the High Parties undertake to respect and ensure respect for this Conven tion in all circumstances."
38 See, d. Amer Al-Zamali, Application of International Humanitarian Law, Lectures on International Humanitarian Law, edited by Dr. Sherif Atlam, Cairo, 2001, International Committee of the Red Cross, p. 122.
39 See , Sherif Atlam, The role of the International Committee of the Red Cross in the development and development of the rules of international humanitarian law, Cairo, Egypt, 3rd edition, 2013, the International Committee of the Red Cross, p. 192
40 See , dr. Amer Al-Zamali, Implementation Mechanisms of International Humanitarian Law, International Humanitarian Law, Implementation Guide at the National Level, presented by Dr. Fathi Sorour, Cairo, Egypt, Dar Al-Mustaqbal Al-Arabi, 2003, pg. 258
law are represented in the guarantees that they established in national laws through international agreements ratified by states that apply in times of peace and in times of armed conflict. The rights recognized for all individuals are a fortified fence and a proactive preventive measure that acts as a safety valve to prevent, as far as possible, from losing people. The International Covenant on Civil and Political Rights is considered (41). According to our humble opinion, we believe that familiarity with the rules of international humanitarian law is a binding necessity for the state parties, which must introduce a special curriculum for the rules of international humanitarian law taught in schools and universities for the purpose of ensuring the implementation of its rules and not as an excuse for ignorance in it.
The year 1966 is one of the most important international agreements in guaranteeing the right to life, the right to freedom and security, the right to physical and moral integrity not to be subjected to torture or to cruel, inhuman or degrading treatment, or to forced medical or scientific experiments, the right to a fair trial, the right to respect for personal and family life, and not Permissibility of slavery and slavery trade or submission to servitude. (42) While the International Convention for the Protection of All Persons from Enforced Disappearance of 2006 is one of the strongest treaties of this law, which entered into force in the year 2010 ( 43)
This is because enforced disappearance represents one of the tributaries of the phenomenon of missing persons, bearing in mind that an agreement obliges states after the permissibility of resorting to any exceptional circumstance, international or non-international armed conflict, or any situation in which there is a lack of internal political stability, or any other exceptional situation.(44)
Respect for these rights would prevent the loss of people due to armed conflict. Accordingly, we believe that respecting and ensuring respect for basic human rights, whether in international humanitarian law or international human rights law, by including their legal rules within domestic law, respecting them, and ensuring respect for them is a safety valve to prevent as many cases of loss as possible.
2.2 Respect and protect civilians and prisoners of the armed forces
International committees, including the Red Cross and other impartial humanitarian organizations, aim to reach civilians, sick, wounded or captured members of the armed forces whose lives are in danger (45)
The concerned international committees collect information related to the events that lead to the loss of people, and on the basis of their findings they make their efforts with the concerned
41 See the four Geneva Conventions of 1949, Articles (47, 48) and Article (127/1), and Article (144/1).
42 The International Covenant, in the text of its first paragraph of Article (2), imposes respect for the state parties and ensuring respect for the rights recognized for all individuals, noting that Iraq is a party to this agreement since 1971.
43 Iraq joined this agreement by Law No. (17) of 2010, Iraqi Gazette, Issue 4158, dated 10/12/2010
44 See Article (1/2) of the said agreement
45 See, Sameh Jagger Al-Beltagy, Protection of Civilians in Times of Armed Conflict, Dar Al-Fikr Al-Jami, 1st edition, 2008, p. 110.
authorities and discuss the appropriate measures to be implemented, whether by the authorities themselves or by the committees and humanitarian organizations (46) Such measures, when possible, would prevent disappearance and loss of contact between family members, and could help reveal the fate of missing persons and facilitate the restoration of family links. It may be necessary to register people most at risk, such as unaccompanied young people and displaced persons. Evacuated civilians and follow-up work on them (47). However, it is often not possible to reach all people at risk, and security threats and lack of cooperation on the part of the parties concerned may impede access to them. The civilian population may be used as a humanitarian shield, and they may be taken hostage as part of the struggle for power and control. Relatives without news of them (48)
This prompted the international community to exert efforts to establish rules for the protection of civilians in armed conflicts, by adopting the Fourth Geneva Convention of 1949 in relation to civilian casualties, which is an original contribution to the development of international humanitarian law, as it established two rules for the protection of civilians, "the obligation of the warring parties to direct military operations to the destruction of force The military operations of the other party and weakening it, not the total annihilation of the citizens of the other party, and the prohibition of directing military operations or any other hostile operations against the civilian population as long as they do not actually participate in the fighting (49) In many cases, the bodies of the victims are left lying in the place where they were killed, or they are buried hastily in secret graves or other places until they are destroyed (50). The obligation imposed on the parties to the conflict is to establish a means of communication directly or through the protection authority or through a specialized body agreed upon by the parties to prevent cases of loss of persons and to protect the most vulnerable individuals from the wounded and sick and those who are more vulnerable than others (51)
In all cases, international humanitarian law prohibits subjecting civilians to torture or coercion, and detainees and prisoners of war are entitled to enjoy their full civil authority and exercise their right as far as the state of detention and captivity allows. Conditions: Persons detained and deprived of their liberty should be allowed to notify their families of their being captured (52).
Sometimes civilians can participate in hostile actions without formally belonging to any regular armed force, especially in the case of spontaneous uprisings in occupied territories, and it also
46 See, Sameh Jaber Al-Beltagy, Protection of Civilians in Times of Armed Conflict, Dar Al-Fikr Al-Jami'i, Alexandria, 1st edition, 2007, p. 2
47 See , Lectures on International Humanitarian Law, Generation Scientific Research Center, February 12, 2014.
48 See, Adam Abdel-Jabbar Abdullah Berar, Protection of Human Rights during International Armed Conflicts between Sharia and Law, 1st Edition, Al-Halabi Human Rights Publications, Lebanon, 2009, p. 22
49 See, Basem Khalaf Al-Assaf, Protection of Journalists during Armed Conflicts, Dar Zahran for Publishing and Distribution, Amman, 2010, p. 73
50 See, Ali Abu Hani, International Humanitarian Law, Dar Al Khaldounia for Publishing and Distribution, Algeria, 2010, p. 165.
51 See, Dr. Thomas de Maiziere, Joint Service Regulation (ZDv) 15/2 and Law of Armed Conflict Manual, Federal Ministry of Defense Berlin, 1 May 2013, P:335.
52 See, Mundhar Saeed Hammuda, Contemporary International Law, Dar Al-Fikr Al-Jamei, Alexandria, 1st edition, 2008, p. 80
occurs in non-international armed conflicts, after which it is difficult to distinguish between civilians and combatants. In such cases, civilians temporarily lose the protection guaranteed to civilians. during the period of their participation in hostilities and benefit from combatant status prescribed for members of the armed forces (53)
And the circumstances of the armed conflict often hindered obtaining information related to the members of the armed forces who went missing during the armed conflict, especially with the modern and multi-effects methods and means of fighting. Therefore, the rules of international humanitarian law included provisions that facilitate the search for the missing, identifying the deceased among them, and protecting burial sites. If the rules of international humanitarian law determine the necessity of searching for the missing and identifying (the wounded, sick, and shipwrecked) in order to prevent them from being lost at the latest date for the end of war operations (54)
As for the fighters who fell under the grip of the enemy while they were prisoners of war, their fate may not be known and information about them may not be known because of the enemy state's decision to detain them in secret places that violate the rights of prisoners or expose them to extortion (55).
The prisoners do not remain missing forever, and the information does not remain confidential throughout life, as some of the missing prisoners are transferred to the central prisons and their fate is revealed.
In our humble opinion, the missing persons file is one of the most complex files in armed conflicts, with the multiplicity of fighting parties on the one hand, and with the absence of any indications to deal with this file in a way that ends the suffering of hundreds of families who are unaware of the fate of their missing relatives. Therefore, each party to the armed conflict, in no later than the date of the end of hostilities, to conduct searches for the missing persons who have informed the opponent of their loss, and the opposing party must inform them of all information in order to prevent the loss of persons and determine their fate. 2.3 Data registration and issuance of identities
The international humanitarian law has taken a package of available measures to help achieve the goal and prevent the occurrence of disappearances, including what includes the correct registration of information and the issuance of identity cards (56 )
The right of families to know through resorting to the state and obtaining information about their unidentified relative and knowing their whereabouts or the circumstances and causes of their death (57 ), and this right should be explicitly recognized for family members by taking the necessary measures to reunite families that have been separated for a period of time as it must be established In a neutral country, a central agency for information about prisoners of war, and if necessary, the International Committee of the Red Cross is the one who proposes to organize this agency, and this agency ensures focus on collecting data and information
53 See, Dinstein, Yoram. The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge: Cambridge University Press,second edition , New york , 2010 , P:200.
54 See, Wael Anwar Bunduq, Encyclopedia of International Humanitarian Law, Dar Al-Fikr Al-Jami, Alexandria, no publication date, pp. 481-485
55 See, Issam Abdel Fattah Matar, International Humanitarian Law, New University House, Alexandria, 2008, pg. 222
56 See Additional Protocol II relating to Non-International Armed Conflicts of December 12, 1977.
57 See Article (122) of the Third Geneva Convention of 1949 relating to prisoners of war
related to the persons to be searched for and transfers this information as soon as possible to the country of origin or to The state to which they belong, and the parties to the conflict shall provide it with all necessary facilities for the transfer of information (58). Also, the adoption of identification measures to help prevent disappearances and facilitate search operations, as appropriate, in times of peace, armed conflict or other situations of violence, and the legal and institutional framework should be adopted in peacetime, so that various procedures can be activated without delay (59 )
2.4 Exchange of family news
Every detained or imprisoned person, and in cases of illness or transfer to a hospital or to another camp, has the right to send captivity cards to his family and to the Central Agency for Prisoners of War to inform his family of his being in captivity, his whereabouts and his health condition, and civilian detainees enjoy the same right Concerning sending an arrest card to their families and to the central agency, a detention card form was attached to the Third Geneva Convention, and to the Fourth Geneva Convention relating to the Protection of Civilians a detention card form (60 )
Each of the parties to the armed conflict must take specific measures under the auspices of a neutral party, as work is underway to develop coordination mechanisms to exchange information between the parties and provide assistance in determining the whereabouts of missing persons, exhuming their remains and identifying their identities, or through the establishment of central agencies or Information offices, to undertake the task of receiving and collecting information that is useful in determining the identity of the protected person in order for their families to be informed of that, and these mechanisms revolve information related to the person in terms of (his name, surname, place and full date of birth, his nationality, his last place of residence, distinctive signs, The name of his parents, the date and nature of the action that was taken, the place where the action was taken, the address to which the correspondence will be directed, and the name and address of the person to whom the information should be communicated) and they send this information to the concerned countries ( 61). In our humble opinion, the international community must impose strict control over the national bodies specialized in recording information and searching for missing persons for the purpose of ensuring that they carry out their duties to clarify the fate of the missing and not to leak their information if that poses a threat to this group, and to determine whether they work seriously in this regard. And also to provide reports that include statistics on the numbers of people who are still missing and people who have been reunited with their families.
2.5 Tracing and family reunification
58 See the strategy for restoring family links and the implementation plan for the International Movement of the Red Cross and Red Crescent, 2008/2014, General Report, Council of Delegates 2007, p. 2.
59 See, International Committee of the Red Cross, International Humanitarian Law, the Manual of the Domestic Implementation of '1202 Geneva 'Switzerland ' ICRC,
April 2013, P: 187
60 Consider, Sherif Atlam, the role of the International Committee of the Red Cross in the development and development of the rules of international humanitarian law, previous reference, pp. 148-149
61 See , Sherif Atlam, the role of the International Committee of the Cross in the development and development of the rules of international humanitarian law, previous reference, p. 150
Each party to the conflict shall, as soon as circumstances allow it to search for the missing persons, and at the latest date of the end of hostilities, search for persons who have been reported missing by the adversary, and this adversary must communicate all feasible information about these persons in order to facilitate the search for them.(62) Information must be recorded on persons who have been arrested, imprisoned, or remained in captivity for any other reason for a period not exceeding two weeks, as a result of hostilities or occupation, or on those who died during their detention. And by facilitating the task of obtaining information related to them as widely as possible about these persons, and conducting a search for them when necessary and recording information related to them, if they had died in another circumstance as a result of hostilities or occupation (63 ).
The Parties to the conflict must also communicate information relating to persons notified missing, as well as requests for such information, either directly or through the Protecting Power or the Central Tracing Agency of the International Committee of the Red Cross or the National Societies of the Red Cross (Red Crescent, Lion and Sun). Al-Ahmarin) and if such information was communicated through the International Committee of the Red Cross and its Central Agency for Tracing Missing Persons, each party to the dispute shall work to ensure that the Central Agency for Tracing Missing Persons is provided with this information (64 ) The First Geneva Convention obliges the parties to the conflict to record information, as soon as possible, all data that helps to verify the identity of the wounded, sick and dead who fall into their hands and belong to the opposing party, such as names and dates of their birth, the name of the country to which they belong, the date and place of capture or death, and any information Others are recorded in the identity card and this information is transferred to the Central Agency for Prisoners of War ( 65)
The registration of search requests for missing persons represents an obligation to take all possible procedures and measures to respond to notifications of the disappearance of a person. The situation should not, in any case, completely exclude the registration and investigation of cases of disappearance, on the contrary, with a focus on preventing the loss of persons, and it is the responsibility of the parties to the conflict to collect complete information about the missing person when recording the relevant data and to ensure that there is a sufficient number One of the facts about the person and the circumstances of the disappearance at the time of announcing the missing person, because important information may be forgotten over time as well as basic data such as name, age, gender, and noting the clothes the missing person wore when he was last witnessed, as well as information related to family members and the person who reported ( 66).
We find that reporting the missing person is possible as soon as there are reasons for concern about the missing persons, as there is no specific time interval.
62 See Article 71 of the Third Geneva Convention relating to Prisoners of War
63 See Article (33), the first additional protocol attached to the Fourth Geneva Conventions of 1977.
64 Same reference, Article (2/33)
65 See, Article (33), Additional Protocol I, 1977, supplemented by the four Geneva Conventions of 1949.
66 See, The Families Of Missing Persons A Practical Handbook, International Committee of the Red Cross , 1202 Geneva, Switzerland , ICRC, March 2013, P:22
According to our humble opinion, countries that have suffered from continuous wars, such as Iraq, Syria, and other countries of the world, account for a large number of missing persons. Often, the reasons for the disappearance of these people are their kidnapping by an unknown party or a party claiming to be affiliated with the state, not to mention the cases of missing persons as a result of mass arrests. It is carried out by government agencies and denying the existence of these people, which made them missing, as happened to many Iraqi activists. With regard to family reunification, it can be said that it is a group of activities aimed at preventing the separation of families and the disappearance of individuals, and restoring and maintaining contact between families, and the activities of restoring family ties are often linked to psychological, legal and material support provided to families and affected persons, and the resettlement or resettlement program Inclusion and social care services (67 ) The parties to the conflict should facilitate the reunification of families separated as a result of armed conflicts, and facilitate the search work carried out by members of these families, and the parties to the conflict should encourage, in particular, the work of humanitarian organizations devoted to this task (68 ).
The parties to the conflicts must take the necessary measures to ensure that children under fifteen years of age who are orphaned or separated from their families because of the war are not neglected, and to facilitate their maintenance, the practice of their religion and their education in all circumstances, or facilitate their accommodation in a neutral country for the duration of the conflict with the consent of the Protecting Power, if any. And to work to take the necessary measures to make it possible to verify the identity of all children under the age of twelve by carrying an identification plate or by any other means ( 69) The Central Tracing Agency plays a major role in facilitating the return of children who are evacuated to a neutral country. In this case, the party that organized their evacuation must prepare a card for each child accompanied by a photo of him, and send it to the Central Tracing Agency for Facilitate the return of children (70 ). 2.6 Establishing an official administration for graves registration
The First Geneva Convention obligated the parties to the conflict, for the purpose of facilitating the identification of graves, to establish an official administration for registering graves when hostilities took place, verifying identity and transporting corpses to the country of origin, and at the end of hostilities, these offices exchange lists with each other showing the locations of graves and the sign. Distinctive and data of deceased persons in order to enhance the speed and efficiency of the search and clarify the fate of the missing (71 )
Where the parties to the conflict must establish a central data register, in which information about missing persons is collected and centralized, and the subject of data management is also relevant to exhumation projects when searching for missing persons, and if oral narratives may
67 See, the strategy of restoring family links and the plan for the International Movement of the Red Cross and Red Crescent, previous reference, p. 5
68 See Article (26) of the Fourth Geneva Convention, and Article (74) of Additional Protocol I relating to international armed conflicts.
69 See Article (24) of the Fourth Geneva Convention relating to the protection of civilians.
70 See, Article (78) of the first additional protocol related to non-international armed conflicts, 1977.
71 See, Article (17) of the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick of Armed Forces in the Field, dated August 12, 1949.
provide information on possible sites for burials or mass graves, the records of military or other government officials who may have been assigned, for example, to dig graves or who may have been involved in transporting bodies to and from the site, may also include information or may corroborate the veracity of such reports ( 72).
It should not be a burden on the national authorities or responsible persons to collect or process the information. These measures are otherwise necessary. Much of the information can be of a very sensitive nature. Misuse may endanger the data subject or family member (73). State authorities should provide access to pre-war health and dental records to facilitate the identification of remains, impose appropriate penalties for illegal destruction or concealment of information relating to missing persons, deaths should be recorded and relevant certificates issued, and moreover A media office and a grave registration department should be established, as stipulated in the Geneva Conventions, and in particular, national information offices should be assigned the task of collecting and sending information such as documents and luggage (74) In our opinion, what should be noted is that the responsibility for preventing loss and investigating the fate and whereabouts of missing persons rests primarily with the state authorities, and the state must take and implement measures, depending on the case, by one or more ministries, the legislative authority, the courts, or the armed forces. or other relevant government agencies.
FIRST: RESULTS
1 - There are several reasons, three main reasons that lead to the loss of people, and they are reasons related to the armed conflict, and there are reasons related to internal violence, and there are other natural causes and others.
2- International human rights law protects missing persons from disappearance as a human being, and not all cases of loss may be enforced disappearance, but there are often many cases of missing persons related to enforced disappearance.
3- It certifies, according to the aforementioned, the international efforts exerted in order to search for the missing and determine their fate in order to reunite the families that were separated due to international or non-international armed conflicts.
72 Information on information management regarding missing persons was included in the replies to the questionnaire submitted by Albania, Argentina, Armenia, Bosnia and Herzegovina, Germany, Guatemala, Jamaica, Mauritania, Mexico, Paraguay and Serbia.
73 See, Article (14), (Registry of information on missing persons), Guiding Principles / Model Law On The Missing, Op. Cit.P: 31.
74 For the national information bureau, see first Geneva Convention, arts. 16 and 17(4); second Geneva Convention, arts. 19(2) and 20; third Geneva Convention, arts. 120-123, fourth Geneva Convention, arts. 130, 136-138; Additional Protocol I, art. 33(3); and the 1907 Hague Regulations, art. 14. For the graves registration service, see first Geneva Convention, art. 17(3); second Geneva Convention, art. 20(2); third Geneva Convention, art. 120(6); and fourth Geneva Convention, art. 130(3).
4- The measures taken to prevent the loss of people, including the dissemination of international humanitarian law, as people's knowledge and knowledge of the provisions of international humanitarian law greatly contributes to the commitment of the parties to the conflict to be strict and not to violate the rules of protection established for missing persons in international humanitarian law.
5- Issuing identity cards for each of the parties to the conflict contributes greatly to identifying the missing, identifying human remains and returning them in accordance with the provisions of international humanitarian law and international agreements concluded in this regard.
6- The exchange of information about deceased and missing persons between the conflicting parties cannot be dependent on the end of the armed conflict. Rather, this obligation must be implemented whenever circumstances permit, for a period not exceeding the end of hostilities.
7- There is no binding rule in international humanitarian law regarding the repatriation of human remains, and this is considered a gap in international humanitarian law, meaning that it is a moral duty.
8- International law is devoid of establishing an organization and principles for protecting the data of missing persons. General principles can be relied upon to include protection for them, including the right to privacy, dignity and confidentiality, which requires efforts by international organizations and through national legislation to ensure the prevention of misuse.
9- International humanitarian law provides protection for missing persons by imposing on the parties to the conflict the duty to identify and protect persons who have been separated from their families, in addition to providing special facilities that guarantee their safety.
10- The International Committee of the Red Cross makes tremendous efforts in the field of reuniting families dispersed by war and armed conflict, as it always seeks to search for missing persons, transmit messages between separated families, and seeks to collect information about persons who are still missing.
SECOND: RECOMMENDATIONS
1- Not allowing or condoning the subjection of any person to disappearance and not invoking exceptional circumstances to justify disappearance.
2- All states and parties involved in the armed conflict are obligated to take all necessary legislative or institutional measures to prevent cases of missing persons.
3- It is very important to ensure that members of the armed forces use peaceful means of identification and to ensure the provision of a means of identifying the parties, given their particular vulnerability.
4- Mechanisms must also be established at the national level to ensure the prevention of cases of missing and disappeared persons and the effective treatment of such cases. While a few contributions referred to measures related to children, the issue of children missing for reasons related to the conflict itself requires greater attention.
5- Ensuring accountability for cases of missing persons is a preventive measure. States must commit themselves to ensuring that these cases are investigated and prosecuted.
6- Persons who have committed crimes of disappearance must be held accountable through non-judicial mechanisms such as transitional justice, and important international commissions of inquiry should be formed through which cases of missing or disappeared persons can be documented and recommendations made to national authorities.
7- In the area of recovering human remains and forensic identification of their remains, local forensic capabilities must be supported and strengthened in the light of existing sound forensic practices, including regional initiatives.
8- The impact of cases of missing persons on society is significant and multi-dimensional and cannot be ignored. Therefore, the families of missing persons should be at the core of all measures taken to confront cases of missing persons to confront and prevent cases of missing persons.
9- The preparation of minimum standards for psychological work should be considered when developing policies related to dealing with victims, including the search for missing and disappeared persons, their identification and related investigations by means of forensic medicine.
10- The international community and concerned international governmental and non-governmental organizations must be committed to ensuring the protection and respect for the rights of the families of missing and disappeared persons at all times.
