C Explanatory memorandum
by Mr Julian Pahlke, rapporteur
1 Introduction
1. Between 2014, when the International
Organization of Migration (IOM) launched the Missing Migrants Project,
and today, “the tragedy of missing migrants has reached a dreadful
magnitude” of dozens of thousands of persons, as stressed by the
former Commissioner for Human Rights of the Council of Europe in
a
statement published in September 2022.
2. In 2018 States signatory of the UN Global Compact on safe,
orderly and regular migration have committed to “sav[ing] lives
and establish[ing] coordinated international efforts on missing
migrants” (Objective 8 of the Compact). After many years of civil
society organisations and families of the disappeared raising the alarm
on the need for co-ordinated action and policy making on this tragic
reality, the many efforts launched by international organisations
such as INTERPOL, the IOM and the International Committee of the
Red Cross (ICRC) are illustrative of the growing acknowledgment
of the issue and the scope for international co-operation to address
it.
3. However, the level of engagement by State authorities as such
has remained limited and this is hampering the impact both of international
co-operation and of actions at the micro-level.
Note
4. On 28 March 2022, a motion for Resolution (
Doc. 15488) was tabled, calling for the Assembly to explore ways
to “encourage the creation of an effective search process for missing
migrants, asylum seekers and refugees, proper management of dead
bodies, identification processes, as well as support that could
be given to their relatives.”
5. The issue is without any doubt morally very compelling, and
yet raises several technical and political challenges. Some aspects
of the problems and issues have been already discussed by the Parliamentary Assembly
in
Resolution 2324 (2020) and
Recommendation
2172 (2020) “Missing refugee and migrant children in Europe” and
in
Resolution 2425 (2022) “Ending enforced disappearances on the territory of
the Council of Europe.”
6. On 25 November 2022, the Standing Committee of the Assembly
referred the
motion for
Resolution (Doc. 15630) “Protecting human rights and saving lives in the North
Sea and the English Channel” to the Committee on Migration, Refugees
and Displaced Persons, asking it to take this motion into account
in the preparation of this report. I am grateful to our colleague
Mr Fourat Ben Chika (Belgium, SOC) for drawing the Assembly’s attention
to this particular situation which has recently – tragically – gained
even greater topicality.
7. For the purpose of this report, I will use the term “missing
migrants” in a general sense of people going missing in the context
of migration, irrespective of the administrative category under
which they may be considered, except when their administrative status
involves a particular type of challenges or procedures to address
or prevent a situation of disappearance (people in need of international
protection, refugees, asylum seekers, people at risk/victims of
trafficking in human beings).
2 Overarching view of the issue: defining
the scope
2.1 Who
are missing migrants?
8. The ICRC considers that a “missing
person” is a person “about whom their family has no news and/or who,
on the basis of reliable information, has been reported missing
as a result of an international or non-international armed conflict,
other situations of violence, disasters or any other situation that
may require the intervention of a competent State authority, including
in the context of migration”.
Note
9. According to the Office of the United Nations High Commissioner
for Human Rights (OHCHR), a migrant is “any person who is outside
a State of which she or he is a citizen or a national, or, in the
case of a stateless person, his or her State of birth or habitual
residence”.
Note Migrants thus may be persons
on the move, or persons of foreign origin established regularly
or irregularly in a country.
10. It is important to highlight that a significant number of
migrants going missing are children, often unaccompanied minors.
Missing Children Europe
Note covering 32 European countries,
has raised its concern that the fate of migrant children often remains
unreported. For its part, EUROPOL notes that their vulnerability
to exploitation, to abuse – including by criminal networks or their
own family unit – is extremely high, even more so as their registration
is not always ensured.
Note
11. Among the men, women and children going missing, some would
fall into the category of refugees in that they might have been
eligible for a form of international protection in the sense of
the United Nations Convention related to the Status of Refugees
(hereunder the “Refugee Convention”). For the purpose of this report,
as regards those missing, I will mostly use the term “migrants”
in a general sense of people on the move, irrespective of the administrative
category under which they might be considered.
12. Migrants may also be victims of enforced disappearance which
mean that they are victim of a crime perpetrated by States or non-state
actors as defined in Articles 2 and 3 of the International Convention
for the Protection of All Persons from Enforced Disappearances.
In 2017, the Working group on Enforced or Involuntary Disappearances
outlined “the direct link between migration and enforced disappearance,
either because individuals leave their country as a consequence
of a threat or a risk of being subject to enforced disappearances
there, or because they disappear during their journey or in the
country of destination.”
Note
2.2 Why
do migrants go missing?
13. In September 2023, the Committee
on Enforced Disappearances found that “migrants are in a situation of
particular vulnerability”, and “faced with restrictive immigration
policies and dehumanizing border governance tactics” leading to
thousands of them dying, disappearing or going missing each year.
Note
14. Migrants may go missing because their death, even if arising
from natural causes, goes unreported, because their body is never
searched for or found, or cannot be identified.
Note Some
may be alive without access to means of communication, for example
in a place of detention. If a body is found, the impossibility of
tracing the person’s journey and the family connections often leaves
family members without any updated news on their loved ones. Even
when the identity of the person is confirmed, families may be out
of reach.
15. The increasingly strict financial, administrative and documentation
requirements imposed by countries of destination, and by countries
of transit to enter or cross their territory, including for people
in need of international protection, should be considered as a contributing
factor to disappearances.
16. The UN Special Rapporteur on the Human Rights of Migrants
(2017-2023) spoke in July 2022 of “the global trends that contribute
to the loss of life and injury including the militarization of border
patrols increasing the risk of human rights violations, collective
expulsions of migrants, heightened risks of refoulement and chain-refoulement,
the use of force involved in some pushback operations, externalization
of border governance measures, bilateral and multilateral agreements
that fail to uphold human rights obligations, and denial of access
to territory or access to asylum by States.”
Note
17. In Europe, the realisation of such restricted access through
physical but also legal/procedural means is combined with practices
which may be in breach of international human rights law as well
as with European norms and case law, such as pushbacks and pullbacks
Note including
through the use of informal detention sites with no regard for registration
procedures.
Note The failure to respect
international obligations including the non-refoulement principle
and the absence of a proper process to ascertain the protection
needs of each individual contribute to migrants going missing.
Note
18. The lack of coordination of search and rescue efforts across
European States,
Note the restriction of search and rescue efforts
means and of the ability for non-state actors to provide support
to migrants in distress have proved to be aggravating factors conducive
to cases of migrants going missing; in the case of tragedies at
sea, the IOM talks about “the invisible shipwrecks.”
Note
19. In this context, the growing presence of traffickers and of
abusive smugglers along migration routes, and sometimes even from
the very outset of the journey, is exposing people on the move to
increased risks of exploitation which reinforces the likelihood
of them going missing and becoming victims of enforced disappearances.
Note This reality, coupled
with agreements between countries to curb migration, is contributing to
“an increase in the exposure of migrants to [a] litany of abuse”
by State and non-state actors.
Note
20. Migrants may be unwilling to register their presence on a
given territory, but they are often known to non-official entities,
for instance community centres or non-governmental organisations.
However, the severe mistrust between official authorities and migrants
or migrant-led non-governmental organisations is conducive to segmenting
the relay of information, which makes it much harder to trace a
person gone missing.
21. The difficulty in tracing the journey or the presence of migrants
is mostly due to the absence of a channel of communication where
the person can notify his/her presence to his/her family members.
It may also be that migrants have had their means of communication
confiscated on their journey, including by law enforcement authorities,
and are left with no means to communicate with the outside world.
22. Such situations may also be exacerbated by malpractices from
the part of official actors such as the lack of systematic registration
or effective access to means of communication for foreigners deprived
of their liberty in formal and informal detention sites, or the
administrative blockage preventing people from ensuring legal residency
when transiting from one administrative status to another.
2.3 Why
clarify their fate?
23. Clarifying the fate of a missing
person starts first and foremost by investigating whether this person reported
missing is dead or alive and, in the latter case, whether s/he needs
support.
24. International organisations and academic experts have testified
to the psychological impact on families waiting to hear from/about
their missing ones, sometimes for years, many suffering from “ambiguous
loss”, a condition of uncertainty having severe psychological and
psychosocial repercussions which may lead to pathology, depression,
alcoholism, or other diseases, and which should be considered as
an issue of public health concern.
Note
25. Very concrete material and administrative repercussions also
impact those left behind. Death certificates may be needed to obtain
civil rights compensatory damage, for legal ownership rights or
even to assume the guardianship of a child or register children
in school when one or the two parents have died. The absence of
a parental death certificate means that an orphan cannot continue
with his/her life and possibly join the only relative they have
in another country, within Europe or beyond. Someone may depend
on a missing person as the main applicant for the issuance or the
renewal of a residence permit, or for an application as a family
unit for relocation to be processed.
Note
26. Clarifying the whereabouts of missing migrants may also involve
solving a criminal case where death was provoked by an act of violence,
abuse or negligence. In this respect, the UN Special Rapporteur
on Extrajudicial, summary and arbitrary executions (2016-2021) stated,
in her thematic report on unlawful deaths of refugees and migrants
in 2017 that the “frequent absence of investigations into deaths
[of migrants] is an additional, worldwide violation of the right
to life, contributing to an international regime of impunity, the invisibility
of the violations, and of their victims, and ill-informed policy
making related to migration that may contribute to further deprivation
of life.”
Note
27. Last but not least, clarifying the fate of a missing person
is simply a matter of human dignity.
Note This moral imperative
Note may find some legal grounding
in the notion of human dignity or even considerations around article
2 of the European Convention on Human Rights (ETS No. 5), as discussed
in section 5.6.
2.4 Legal
framework
28. The Guiding principles for
the search for disappeared persons of the UN Committee on Enforced Disappearances
are based on the International Convention for the Protection of
All Persons from Enforced Disappearance (ICPPED). Its Principle
1 states that “[t]he search for a disappeared person should be conducted
under the presumption that he or she is alive.”
Note Article 24 of the
Convention recognises families as collateral victims of enforced
disappearances, with ensuing responsibilities for State authorities
to ensure effective support and reparations mechanisms.
29. According to the ICPPED, State parties should ensure that
any individual suspecting that a person has been subjected to enforced
disappearance has the right to report the facts (Article 12), that
no one will be held in secret detention, and that any person deprived
of liberty shall be authorised to communicate with his or her family
(Article 17). As of 2021, only 21 member States had ratified the
ICPPED and are bound by it.
Note The ICPPED also
provides that States must take all appropriate measures to search
for, locate and release disappeared persons and must investigate
acts of enforced disappearance and bring those responsible to justice.
30. Article 71 of the International Convention on the Protection
of the Rights of All Migrant Workers and Members of Their Families
requires States Parties to “facilitate, whenever necessary, the
repatriation to the State of origin of the bodies of deceased migrant
workers or members of their families.” As of 2024, seven member
States of the Council of Europe had signed the Convention including
four who have ratified it.
31. The international law of the sea also posits very clear obligations
for States and non-state actors to assist and rescue persons in
distress at sea (the International Convention for the Safety of
Life at Sea – SOLAS – and the 1979 International Convention on Search
and Rescue – SAR). Moreover, in 2022, the United Nations Office
on Drugs and Crime (UNODC) issued an official statement encouraging
States to “give special attention to the recovery of dead bodies
as well as efforts directed at determining their identity, providing
their families with information on their fate and whereabouts and
preventing them from becoming missing persons.”
Note
32. The European Convention on Human Rights protects the rights
of all people living in Europe and contains particular obligations
which, if duly respected, can help prevent migrants from going missing,
and can help safeguard the rights for families to know the fate
of their missing ones.
33. Article 2 of the Convention imposes positive and negative
obligations whereby States should take all required steps to safeguard
the lives of those within their jurisdiction. Such obligations derive
from all instruments in international law applicable in all circumstances
including in cases of restriction or deprivation of liberty, and
find their grounding in Article 3 (prohibition of torture or of
inhumane and degrading treatment), Article 5 (lawfulness of detention
and especially importance of keeping a record of the time, date,
place of detention as well as of identification of detainees
Note) and in Articles
8, 10 and 12 of the Convention (contact with the outside world in
the case of detention
Note).The
enjoyment of procedural rights enshrined in the Convention (Article
13) may prevent situations leading to disappearance notably the
risk of being held incommunicado, as well as the right of family
members to be informed of the fate of their missing members, considered
in the light of the right to private and family life (Article 8).
Note It may also be inferred from
Article 8 that the right to family life may encompass the possibility
to locate and pay their respects to a deceased member of family
at a marked grave.
34. With respect to the right to dignity of the deceased, the
Court has interpreted the Convention with consideration for the
relatives and their right to respect, pursuant to Article 8 and
Article 3 in relation to a case involving the intentional mutilation
of bodies.
Note While “[t]he Court has held that
the human quality is extinguished on death and, therefore, the prohibition
on ill-treatment is no longer applicable to corpses” it has found
that “the treatment of dead bodies has given rise to a violation
of Article 3 with respect to the deceased’s relatives”.
Note
35. Cases of deaths caused by the use of force should be thoroughly
investigated, irrespective of whether suspected perpetrators are
State or non-state agents.
Note The
Court also stated that the knowledge of cases where suspicious death
may be involved should be sufficient for the competent authorities
to act.
Note
36. According to the Last Rights Projects, such reasoning may
be applicable in some missing migrant cases where deaths may be
considered as having been caused by the use of force, and the State’s
failure to investigate on reported suspicious deaths may be considered
as breaching the Convention.
37. With respect to personal data, all cases listed in the Court’s
case law on the matter have to do with the personal data of living
persons.
Note The personal data
of living individuals are protected in Europe under the
Convention
for the Protection of Individuals with regard to Automatic Processing
of Personal Data (ETS No. 108) as amended by Protocol CETS No. 223 (“Convention
108+”) and pursuant to Article 8 of the European Convention on Human
Rights. This convention entails a number of principles safeguarding
the rights of data subjects when processing “special categories
of data” (Article 6) including genetic and biometric data.
38. For those individuals whose body or remains of the body may
have been found without any immediate prospect of establishing identity,
most national legislations provide for legal frameworks with respect
to the management of unnatural or suspect deaths, cases which may
lead to the opening of a criminal investigation and to the identification
of the deceased. Few States have adopted legislation that requires
them to take all reasonable steps to identify human remains.
3 Multidimensional
challenges
3.1 Reporting
the missing and launching an investigation
39. Any missing person should be
reported by their families, their kinship, or their co-travellers
so that a search warrant can be launched by the police. However,
for families or kinship of missing migrants, support networks and
resources are usually scarcer than what may be available to families
reporting a person missing in a domestic context, particularly if
no criminal investigation is launched. The international context
renders the reporting even more complex: if families know or presume
where their missing family member may be, they do not necessarily
know whom to address in this country, nor be able to communicate
in a language which those authorities may understand. And even in
the country of origin, families or kinship may not know where to
turn to or are left with no interlocutor.
40. Most countries have police departments competent to register
cases of missing persons and investigate such cases across member
States. They rely on international co-operation tools such as INTERPOL’s
Yellow Notices if necessary. However, administrative tools and databases
are not necessarily successful in identifying people living without
an up-to-date civil registration in the country where they were
last located.
41. During my fact-finding visit to Greece in March 2024, community-based
organisations shared their deeply rooted perception but also their
very concrete experience of marginalisation by the official authorities. This
is not specific to Greece.
Note Nonetheless,
this reality is having direct consequences on migrant communities,
who simply do not trust official authorities. Communities searching
for a missing person are therefore using informal channels, social
media, word of mouth and even printouts of photographs on posters on
the street: my interlocutors acknowledged that this raised serious
issues regarding confidentiality and the sharing and use of personal
data, possibly jeopardising the safety of the person.
3.2 Data
collection on a segmented itinerary
42. Often, information on missing
migrants may exist but it is scattered across a diversity of public
and non-public stakeholders and sites.
43. Ensuring data protection is therefore essential when aiming
to trace missing migrants. The challenges range from: identifying
trusted data collectors to reach out to the diversity of actors
and entities; determining an adequate legal basis to lawfully use
and share such personal (sometimes biometric) data; having legislations
in place enabling the sharing of such data for humanitarian purposes
safely and proportionately nationally or even internationally. Such
considerations are of the utmost importance in the context of the growing
appetite from the part of policy makers and law enforcement authorities
for the interoperability of databases.
44. In the case of official entities (for example the police force,
anti-trafficking units, detention sites, reception centres, shelters),
national legislations are usually careful concerning the possibility
to share personal information with third parties. In the case of
non-official entities and individuals, it is worth noting that friends, families,
co-travellers, even survivors of shipwrecks, can provide important
information which can help locate and find a person who is missing.
Such information can also prove extremely valuable in providing
what is called missing person data, including ante-mortem data.
However, these persons are not systematically approached, let alone
using any harmonised standards, and may not wish to be.
45. Adults may wish not to provide information about their whereabouts
or situation. One challenge is to provide trustworthy platforms
for people to register their fate, so that the police authorities
are able to inform family members that they are well and safe without
disclosing their exact whereabouts, for example like what is provided
for through the Missing People charity platform in the United Kingdom.
46. However, in the case of migrants under 18, one of the main
issues at stake across Europe is the absence of systematic registration
of unaccompanied or separated children, as underlined in
Resolution 2324 (2020) “Missing refugee and migrant children in Europe.” These
children turn out to be particularly vulnerable if left with no
systematic registration once turning adult, as noted by our colleague
Ms Rósa Björk Brynjólfsdóttir (Iceland, UEL) in her report “Effective
guardianship for unaccompanied and separated migrant children” (
Doc. 15133).
3.3 Managing,
registering and identifying dead bodies
47. Migrants may be reported missing
and then found dead. It also often happens that dead bodies are
found and are not identified because no one is looking for them
Note or because the procedures
are not sufficiently standardised, and resources are unavailable
to process all cases.
48. To identify a body, a thorough forensic examination is required
to collect the post-mortem data and the specific features on the
body (scars, tattoos, etc). Identification procedures, notably for
sudden and suspicious deaths, are defined in national law. However,
in the case of missing migrants’ death, the same identification procedures
are often not conducted.
49. Unreported deaths of migrants fall into the category of the
many invisible and marginalised persons who are buried unidentified,
in a general context of scarce judicial and medico-legal resources
to investigate even the suspicious deaths of nationals.
Note Moreover,
such deaths may not be accidental but be provoked by indirect actions,
through negligence or acceptance of risk, potentially involving
crimes such as “criminal negligence” or “involuntary homicides”:
such cases should be investigated by the authorities in charge.
50. Once recovered, a body should be kept in a morgue pending
the identification process by the competent authorities if so decided,
or in a cemetery: this is costly. Throughout the preparation of
this report, all forensics pointed to the lack of space in the morgues
to keep corpses until the autopsy is conducted and until, perhaps, a
family member makes themselves known to the police. As an example,
the forensic department at the University Hospital in Alexandroúpolis
was given two refrigerated containers by the ICRC which can keep 30 corpses
altogether. Both refrigerated containers were full at the time of
my visit in early March 2024. No public funding is available otherwise
to pay for such equipment.
51. Besides, forensic laboratories are not all trained or sensitised
on the cases of unidentified bodies which may be that of migrants.
In Greece, a dozen of forensic medical services is to be found but
only few (Alexandroúpolis, Lesvos, Rhodes, Samos) are regularly
involved in cases of unidentified bodies who are likely to be migrants
crossing through Evros or the Aegean Sea.
52. A major question also arises when looking for a space to inhumate
migrants who lost their lives including those who are unidentified.
Across European countries, some sections of cemeteries are sometimes
dedicated for the final resting of these people. Sometimes, specific
plots of lands are allocated by the local authorities to bury them,
like in Sidiro, Greece.
53. The lack of harmonisation of national procedures, primarily
designed to address the death of registered citizens, renders the
cross-country search for a missing person extremely difficult, especially
if death happened during an irregular border crossing; this is exacerbated
by the material and financial challenges faced by the authorities
as well as families.
Note
54. Identification through DNA is not a panacea in the case of
missing migrants. First, DNA registration may not be sufficient
or available if the person has not had her/his biometrics registered
elsewhere, if no family member supplies his/her DNA to allow a comparison
and a possible match, or if DNA comparison is not allowed through
specific legislation protecting the rights of data holders. Second,
a migrant whose body has been recovered may also be identified through
other unique or personal information such as personal belongings, or
specific characteristics on the body. These are called “secondary
identifiers” and are commonly part of the ante-mortem data. However,
this kind of information is either stored in the eventuality of
a family member identifying the body and claiming these belongings,
Note or
destroyed.
55. Secondary identifiers are not automatically registered in
a repository, neither are survivors systematically interviewed following
disasters, and even if they are, this not always done according
to the same standards (protection-sensitive and oriented towards
the collection of information helping to identify who were the co-travellers
and who may be those missing). Yet, such information may be particularly
valuable to identify a country of origin and from there on, through
official channels, possibly get in touch with members of families to
confirm the identify of a deceased person.
Note
3.4 Engaging
communities and families
56. Not all countries have an external
representation to the country where a deceased person was found
(for example Afghanistan). It may also be difficult for the official
authorities to ensure that the information and documents provided
by the presumed members of the families are genuine. The role of
community-based organisations may provide a useful informal channel
to reach out to families.
57. Once possible family members are identified, they should be
provided with explanations as to the identification procedure and
be asked to give their informed consent regarding the sharing of
their biometric data. Such procedures should be in line with the
standards recognised by the countries between which a cross-check
of DNA information will be conducted, which necessitates of course
that such legal framework, based on the relevant standards, exists
in each of those countries. The prosecutor must also contact the
country where the body was found to launch an identification request
through official legal proceedings.
58. Families cannot always afford the cost of sharing a DNA sample
with the competent authorities; cost is also a barrier in accessing
visas. It may be difficult to obtain visas in all events, in order
to be able to travel to identify their missing family member, pay
their respects and inhumate the body in that country should repatriation
be impossible.
59. Overall, therefore, the cost of any procedure undertaken,
particularly if any form of repatriation is envisaged, is very high.
Expenses regarding legal advice may also have to be considered.
In the case of Greece, for example, the Last Rights Project shared
that “without a lawyer even though it is often not a legal issue
at all, the Greek authorities will not engage in the absence of
official representation of the families.”
Note
3.5 Many
actors, many practices, many data sets
60. In the international migration
context, information is spread across many countries, with families
often located outside the jurisdiction they need to engage with.
61. In some cases, the missing person may not in fact be dead.
Tracing migrants is extremely difficult for many reasons. For example,
adults may not wish to disclose their whereabouts, while unaccompanied
children may disappear from reception centres on their own volition
in order to reunite with family members or with other persons close
to them who are not however their legal guardians.
62. It may also be uncertain that the names and details of migrants
inscribed on all tombs are their actual names and confirmed civil
details, and it is not always certain that the authorities of the
presumed country of origin have been informed.
63. International organisations such as the UNHCR or the International
Red Cross and Red Crescent Movement which register information on
migrants, refugees and asylum seekers along their migratory route
as part of their mandate (services provided, visits of detention
centres, reporting of persons missing) are, understandingly, wary
of sharing information about people who may still be alive and where
the sharing of information may be detrimental to their safety.
64. The importance of not unduly sharing data on missing persons
who are or may be alive is also taken very seriously by the national
authorities, not least with regard to the best interest of children
and particularly vulnerable groups such as victims of trafficking
and victims of gender-based and domestic violence.
65. The challenge often resides in the absence of a legal framework
enabling data owned by non-state actors and State actors to be submitted
to the same platform in order to potentially identify matches in
the case of unidentified bodies or remains. Forensic experts need
a judicial authority to authorise the sharing of information with
a third party. Organisations like INTERPOL are easier for the prosecutor’s
office to engage with because it is an international organisation
for police co-operation with common standards.
Note
3.6 Connecting
the dots: what options?
66. It is clear that one of the
most significant obstacles encountered in the search for missing
persons, whether dead or alive, is the lack of compatibility and
exchange of information between different databases, some of them
managed by official actors, others by non-governmental organisations,
all acting by different standards even though some harmonisation
efforts have been made.
67. Another major issue are the challenges in handling police
and non-police data. INTERPOL is ruled by strict standards on data
processing in line with its Constitution and with the Council of
Europe
Convention
108+ for the protection of individuals with regard to the processing
of personal data. These safeguards are of particular importance to the
issue of missing migrants for at least two reasons: first, INTERPOL
is insistent on the fact that going missing is not a crime and ensures
that comparisons to search for missing persons, or their families,
in the DNA databases are conducted strictly against non-offender
data; second, Article 3 of its Constitution (adopted in 1956) prohibits
INTERPOL from undertaking “any intervention or activities of a political,
military, religious or racial character.”
68. These constitute safeguards against the risk that data is
manipulated or misused for the purpose of racial discrimination
and against unjustified criminalisation. In 2017 already, the EU
Fundamental Rights Agency, also making reference to concerns expressed
by the European Data Protection Supervisor, warned against the risk
of discrimination and of profiling deriving from the undefined concept
of “migratory risk” by Schengen member States as part of the European
Travel Information and Authorisation System.
Note
4 Existing
efforts at international level and across Europe
4.1 Shaping
a political consensus and setting standards: international and regional
positionings
69. In 2018, the United Nations
adopted the
Global
Compact for Safe, Orderly and Regular Migration (GCM) which was endorsed by the UN General Assembly
and specifically calls on States to “save lives and establish coordinated
international efforts on missing migrants” (Objective 8). Objective
8 of the GCM comprises a set of “associated actions” including the
promotion of international co-operation to “recover, identify and
repatriate the remains of deceased migrants to their countries of
origin” in dignity.
70. The United Nations have gradually noted the vulnerability
of migrants of becoming victims of enforced disappearances,
Note and
their efforts culminated in September 2023 with the adoption of
the first General Comment on Enforced Disappearances in the context
of Migration by the UN Committee on Enforced Disappearances.
Note Over
the years, the Special Rapporteur of the United Nations on extrajudicial,
summary or arbitrary executions also stressed the importance of
preventive measures so that unlawful killings of any individuals
including migrants do not occur, and underlined the importance of
reliable investigations to identify the deceased, bring perpetrators
to justice and prevent re-occurrence.
Note
71. In 2016, the Special Rapporteur submitted to the UN High Commissioner
for Human Rights
the Minnesota
Protocol on the Investigation of Potentially Unlawful Death. Although non-legally binding, the Minnesota Protocol
is today considered as a gold standard for the forensic investigation
of potentially unlawful deaths on the investigation, excavating
and autopsy rules applicable in the context of unlawful killings,
with due account to the role and obligations of State authorities
as well as for the rights of families (except if they are implicated
in the cause of the death).
72. The ICRC has been particularly pro-active in consolidating
the knowledge available across the globe to facilitate the harmonisation
and standardisation of procedures on the particular case of missing
migrants.
Note In 2023, a legal factsheet
compiling the most up to date information on
missing
migrants and their families was made available. In 2023, it rolled out the Missing
Persons Digital Matching solution as an additional digital avenue
to search for missing persons in the ICRC’s,
National
Red Cross and Red Crescent Societies’, and possibly in the future ICRC’s partners’ databases
(international organisations and government databases, but also
some vetted non-governmental databases).
73. INTERPOL developed a Guide to Disaster Victim Identification
which is regularly updated (latest version published in 2023) and
is the unique globally accepted standard in this field. INTERPOL
has long shared an expertise in the biometric evaluation of cases,
it has a unique capacity of dissemination and sharing of police information,
based on robust safeguards enshrined in the
INTERPOL
Rules on the Processing of Data. The organisation also adopted
rules
on the processing of data which set the conditions for international organisations
to co-operate on the processing of personal data, and which lay
down the conditions for recording data of deceased persons in the
datasets only in specific cases, including for identification purposes.
74. Regional organisations have also adopted resolutions supporting
policy action on this particular issue, notably the African Commission
on Human and Peoples’ Rights in 2021 and the European Parliament
in 2023.
Note
75. In 2024, a workstream was established between the UNHCR, the
IOM, the ICRC and the IFRC to enhance concerted political will and
action on the provision of humanitarian assistance to migrants in
distress to prevent loss of life in transit.
Note
4.2 The
slow pace of enacting public policy responses
76. The calls for policy responses
have barely materialised in domestic policy responses, despite the number
of efforts dedicated by non-governmental actors
Note to
accompany the adoption of legal reforms or even support nationally
the impetus provided internationally, including by representatives
of States and government when endorsing the GCM.
77. In September 2023, a “thematic meeting on separation of families
and missing persons in the context of migration” was organised in
the context of the Euro-African Dialogue on Migration & Development
(Rabat Process) facilitated by the ICRC. The recommendation to appoint
a national focal point on missing migrants in each member of the
Rabat process to facilitate inter-governmental co-operation and
multilateral discussions was officially endorsed in February 2024
at the last Senior Official Meeting of the Rabat Process. Currently
six countries part of the Process have appointed focal points (Switzerland,
the Gambia, Ivory Coast, Malta, Chad and Senegal).
78. In March 2024, the Belgian authorities amended the law on
DNA identification in criminal proceedings: the use of DNA identification
is now enlarged to identify missing persons and unidentified bodies,
including via the sharing of information with European and international
databases.
Note This legislation allowed
for profiles to be searched in INTERPOL’s DNA and I-Familia databases,
which was welcomed by the organisation as a strong message sent
to other countries about the use of international police co-operation
to “help get answers for families.”
Note
4.3 Fact-finding
mission to Greece
79. In June 2023, the Greek authorities
activated the Disaster Victims Identification (DVI) protocol to
identify victims of the Adriana shipwreck, an estimated 750 persons,
which sunk in one of the deepest points at sea in the region. The
Forensic Science Division and the DVI Unit Department of the Hellenic
Police described in detail the particularly technical and emotionally
demanding work which their teams are conducting to recover and identify
the deceased bodies. The latest update in May 2024 indicated that
74 people had been identified (31 Egyptians, 21 Pakistanis, and
28 Syrians).
80. The DVI Unit ensured that psychologists were available to
support relatives and friends of people who had disappeared during
the shipwreck. It also co-operated with the embassies, sometimes
relying on the Red Cross and Red Crescent services and on the International
Commission on Missing Persons (ICPM) to act as an intermediate with
the authorities in cases where families felt more comfortable engaging
less directly with official entities (for example in the case of
Syria).
Note Various national stakeholders from
the coroner’s office to the General Secretary of Civil Protection,
the Ministry of Foreign Affairs but also other DVI teams in other
EU countries were involved.
81. In terms of prevention mechanisms, I was able to exchange
with the General Secretary for Vulnerable Persons and Institutional
Protection at the Ministry of Migration and Asylum who provided
detailed information on the national emergency response mechanism
since 2020.
Note This initiative is aimed at securing
a smooth transition to adulthood for young adults and should be
regarded as a good practice to prevent those turning 18 from being
deprived of any administrative status.
82. Additionally, in September 2021, the National Commission for
Human Rights decided to establish the Recording Mechanism on Informal
Forced Returns. This practice was acknowledged by the European Commission
in its 2023 Rule of Law Report, as a good practice aiming to “boost
accountability for reported human rights violations alleged to have
occurred” and which may be used to clarify cases of missing migrants as
well as bringing perpetrators of enforced disappearances to account.
Note
83. I was particularly grateful for the exchanges I had with members
of the Hellenic Parliament as well as with the Hellenic Minister
on Migration and Asylum, who all agreed that access to visas for
families to identify deceased members of their families whose body
was found in Greece should be facilitated; the Minister committed
to requesting the Hellenic consular services to expediate short-term
visa requests lodged by families to travel to Greece.
4.4 International
organisations devising cross-border co-operation tools
84. The Family Links Network, coordinated
by the Central Tracing Agency (CTA) of the ICRC provides free and
confidential services to families and to people who are searching
about their relatives and/or would like to inform about their fate
and restore contact with their family. Restoring Family Links services,
under the co-ordination of the CTA, is equipped with a set of digital
tools/platforms to manage individual cases and search for people
that have gone missing.
Note
85. In 2021, INTERPOL launched an innovative and unique database
called “
I-Familia”: families can come forward and provide their DNA with
appropriate safeguards. This platform is complementary to the Prüm system
(for all Schengen member States part of it) which was recently expanded
to non-criminal DNA information on missing persons and unidentified
bodies: contrary to Prüm, I-Familia can help in cases where a direct
profile is missing and where families are known.
4.5 Local
initiatives
86. The commitment of some individual
forensic doctors is a striking and humbling example of the urge
felt by professionals to honour the deceased and address the needs
of families. In Alexandroúpolis, Pr Pavlidis has systematically
kept the belongings recovered from the corpses in the hope that
a family member will, one day, recognise a necklace, handwriting
on a piece of paper, a key ring. In Paris, the Medico-Legal Institute
has devised its own co-operation protocol with the judiciary in
Paris so that the prosecutors authorise the systematic autopsy of
unidentified bodies.
87. Volunteers have also engaged with the Red Cross and Red Crescent
Movement. In Catania, locals involved in the reception of migrants
have, in co-ordination with the Family Links Network to which the
Italian Red Cross is part of, initiated the collection of all information
possible on people buried in the migrants’ section of the local
cemetery.
Note In Spain, with the support
of the ICRC, the National Society developed a specific program to
collect information from various sources including survivors of
shipwrecks to reconstitute list of passengers and provide partial
answers to the families.
88. Across the globe, collectives of families and NGOs have structured
a series of responses. From psycho-social to fundraising efforts
to help finance legal representation, the repatriation, the burial,
or the travelling fees, from public gatherings to commemorate the
memory of the missing to the publication of booklets in various
languages to help families identify what authority to contact to
report a missing person in a foreign country and sort out administrative
issues, non-governmental initiatives provide a unique space which acknowledges
the voices and the sadness of these families and friends.
Note
5 Recommendations
5.1 Acknowledging
the issue as one with public interest
89. Adequate public budget should
be allocated to prevent the disappearance of migrants, refugees
and asylum seekers, as well as to address the search, investigation,
identification and burial or repatriation needs. Resources should
be able for professionals across all sectors involved in the prevention
and addressing of cases of missing migrants such as the judiciary
(especially prosecutors), administrations on social affairs, police
forces, forensics and coroners, consulates, coast guard and border
guard authorities, the data protection authorities and the ombudsperson’s
office.
90. These stakeholders should be trained on standard procedures
related to the prevention and search of missing migrants, and on
the identification of recovered bodies or human remains.
91. Any policy approach should be inclusive of the voice of non-state
actors and international organisations such as the Red Cross and
the Red Crescent Movement, INTERPOL, the IOM, the UNHCR which share
an expertise in this issue, and which can act as trustworthy intermediates
with families of missing migrants or with migrants willing to inform
of their whereabouts.
92. Co-ordination of such a policy-based approach may be facilitated
by an entity officially appointed to liaise between all official
and non-governmental actors at domestic level and act as an interface
with external entity, such as the network of focal points on missing
migrants which is being established with the support of the ICRC.
93. Coroners and forensics should be trained and provided adequate
working conditions, materially as well as in terms of training resources
and staff. Such resources are necessary to register and investigate
the cause of the death of the significant number of unidentified
bodies which are, tragically, to be found in significant numbers
across Europe, particularly at its land and sea borders.
5.2 Not
an inevitable phenomenon: preventive mechanisms
94. Preventive measures and policies
should ensure that people on the move have access to humanitarian support,
irrespective of their status, along migration routes, in line with
ICRC’s recommendations and with the “routes-based approach” promoted
by the UNHCR and the IOM.
95. Search-and-rescue mechanisms should be systematically and
swiftly deployed at land and at sea whenever a group of people in
distress is reported to the competent authorities.
96. Migrants, refugees and asylum seekers should be provided decent
and dignified reception conditions wherever they are registered
officially by the State authorities, which will decrease the risk
of vulnerability and of disappearing. Particular attention should
be paid in all procedures to the vulnerability and needs of migrants, refugees
and asylum seekers, including children especially when they are
unaccompanied.
97. One of the main issues at stake across Europe is the absence
of systematic registration of unaccompanied or separated children.
It should be recalled that the GRETA has adopted guidelines available to
member States on registration policies, with a particular warning
against the risk of children going missing as victims of trafficking.
Note
98. Effective mechanisms for family reunion and reunification
should be ensured for anyone officially registered in a country
whether they are asylum seekers whose application is pending, or
members of family of a migrant worker.
99. All persons deprived of liberty in detention sites or in de facto detention sites under the
supervision of official authorities should be systematically registered
and guaranteed effective access to their procedural rights and to
effective communication with the outside world, in line with the
European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (ETS No. 126) and with the European
Convention on Human Rights.
5.3 Searching
for the missing effectively: reporting and investigative mechanisms
100. Trustworthy platforms are needed
for migrants, refugees and asylum seekers to register their fate
so the police authorities are able to inform family members that
they are well and safe without disclosing their exact whereabouts.
101. Any person reported missing should be searched for. People
should be able to report that a member of their family or an acquaintance
is missing, without any fear of a check on their criminal record
or administrative status. Reporting mechanisms should be accessible
to relatives or any reliable source so that unnatural deaths which
are suspected to have occurred because of extra-legal, arbitrary
and summary executions are investigated thoroughly, promptly and
impartially.
102. The role of community-based organisations, migrants’ rights
organisations, and international organisations providing services
to migrants, refugees and asylum seekers should be recognised as
trusted intermediaries to report a case of a person missing to the
national competent authorities.
103. It is important that non-governmental entities possess the
ability to be mindful of the appropriate standards when approaching
vulnerable groups, or when engaging with people whose identity as
family members may not be certain. They must also hold the trust
of the authorities.
104. Interviews with migrants who were provided with humanitarian
support along their journey should be conducted to identify possibly
cases of persons gone missing on the way; such interviews must be
voluntary, protection-sensitive, and duly considerate of the high
vulnerability of the persons interviewed, and only carried out by
trained interlocutors. The information collected should only be
shared if the interviewee consents to it to notify the competent
authority towards the search and potential investigation of the
case. Such information sharing should be for humanitarian purpose
directly only with the competent authorities, or with a trusted intermediary
which will inform the competent authorities.
5.4 Recovering
and identifying the deceased: the need for internationally harmonised
standards
105. The deployment of disaster
victim identification units in the context of migrant shipwrecks,
following the example of the work carried out by the Hellenic Police,
must be acknowledged as a good practice.
106. Co-operation on data sharing should be made possible between
State authorities with the involvement of national independent data
protection authorities and with the highest consideration for data
protection standards. It must be guaranteed that the search for
possible match between different datasets across different countries
is only meant for humanitarian purposes and in full alignment with
the Council of Europe Convention 108+ and in co-operation with ICRC
and INTERPOL.
107. Secondary identifiers should be systematically collected and
registered in a repository available to facilitate the identification
of deceased persons or of unidentified human remains. In the same
spirit, interviews with people provided with humanitarian assistance
along their migration journey may help report the cases of deceased
persons, as well as facilitate the identification of these persons.
The protection-sensitive safeguards must apply when interacting
with interviewees.
108. All member States of the Council of Europe should adhere to
the modernised version of Convention 108 (Convention 108+). Aligning
by the globally recognised standard on data protection will ensure
that cross-border co-operation to search for and identify missing
persons, including migrants, refugees and asylum seekers, will fully
respect the individual right to privacy while ensuring an optimal
data sharing between State authorities, under the oversight of duly
established independent data protection authorities.
109. Any suspicious or unnatural deaths should be systematically
and thoroughly investigated, and families communicated the result
of such investigation and repatriated the body of their member of
family, in line with the International Convention for the Protection
of All Person from Enforced Disappearances and with the Minnesota
Protocol.
110. Any investigation on a suspicious or an unnatural death should
also involve the identification of the cause of the death and of
the people responsible for such death. In the case of the identification
of such persons, perpetrators should be brought to justice and victims,
including families, should obtain redress, unless they are involved
as perpetrators. Effective human rights return monitoring and border
monitoring mechanisms must be recognised as instruments which can
help clarify cases of missing migrants as well as bringing perpetrators
of enforced disappearances to account.
111. Standard procedures should be adopted across member States
in relation to the excavation of graves and autopsy, as indicated
in the detailed guidelines of the Minnesota Protocol (Guidelines
C and D).
112. A network of prosecutors on the issue of missing migrants
at the level of the Council of Europe would provide a very useful
discussion forum to start reflecting on this issue in very practical
terms. It may be worth reflecting on possible synergies with existing
initiatives at regional level such as the network of focal points
on missing migrants.
113. In all circumstances, whether death was natural or not, the
rights to data protection of members of families during any identification
process of a migrant gone missing whose body may have been found
should be fully respected, in conformity with the standards set
in the Convention 108+.
5.5 Managing bodies
114. The marking of the tombs with
at least a form of registration is essential but this is not systematically
the case, creating a significant challenge for families who may
come years after the death to try and identify the grave of a member
of their family. The maintenance of the tombs proves also costly
and is usually ensured by non-governmental initiatives.
115. The standards applicable to the treatment of dead bodies and
human remains set in international humanitarian law should be acknowledged
by member States as extending beyond the situations where IHL applies.
116. People shall not go missing twice: anybody, whether in the
form of a corpse or of human remains, shall never be buried unidentified.
Such identification may take the form of a number in the absence
of any other personal identification element. Graves should be individual
and registered and mapped so that they can be located in the case
of a late identification.
117. Importantly, the Committee of Ministers of the Council of
Europe adopted
Recommendation
R(99)3 on the harmonisation of medico-legal autopsy rules:
this document, although non-binding, provides very useful and European-wide
recognised standards which may provide a pertinent policy document
to engage in discussions on the particular issue of missing migrants.
5.6 Reflecting on the protection and the
dignity of the deceased
118. “Every individual has the right
to be identified after death, accurately and in a respectful and
dignified manner. This is a clear sign of a civilised society.”
This is how the head of the Forensic Unit at the Hellenic Police
started her presentation when I visited them in March 2024. This
sentence is very illustrative of a nexus worth exploring to question
the possible legal grounding of the call for respect and protection
for the rights of the deceased.
119. The topicality of this issue was confirmed with the decision
by the UN Special Rapporteur on extrajudicial, summary, or arbitrary
executions to report on “the protection of dead persons and their
human remains, including of victims of potentially unlawful killings”.
The report observes “a growing corpus of human rights-based national
and international jurisprudence and practice to protect the dead
and the rights of their bereaved families” and concludes that “the
dignity of a person and the respect owed to his or her body and human
remains do not cease with death”. It further observes that “the
protection of the right to life, the rights of family members of
the deceased, and the treatment of the deceased are therefore closely
intertwined”.
Note
120. Besides, the explanatory memorandum of Convention 108+ posits
that “[t]he Convention (…) is not meant to apply to personal data
relating to deceased persons. However, this does not prevent Parties
from extending the protection to deceased persons” (paragraph 30).
121. The question revolving around the legal obligations associated
with the dignity of the deceased raises the issue of “the last rights”.
Note The
Minnesota Protocol already posits that “[t]he recovery and handling
of human remains – the most important evidence at a crime scene
– require special attention and care, including respect for the
dignity of the deceased and compliance with forensic best practices.”
Pr Catherine Dupré argues that, while human rights law had been
developed for the living, treaty law did not restrict dignity to them.
Note
122. By referring to “forensic humanitarianism”
Note and
to the “last rights” in her report on summary executions and mass
graves in 2020, the UN Special Rapporteur on Extrajudicial, summary
and arbitrary executions (2016-2021) seems to agree that such rights
may exist.
Note
5.7 Support and protect families
123. Ensuring safeguards for families
and acknowledging their rights as victims, but also as stakeholders
in the clarification of the fate of missing migrants, is essential.
Protocols and protection-sensitive approaches are paramount.
124. Access to visas needs to be facilitated in order to allow
for transnational searches and for people to be able to pay their
respects to their lost ones.
125. The possibility for national authorities to issue absence
certificates recognised across European countries may help family
members proceed with their lives, instead of being blocked in various
administrative processes which can last for years.
126. The Convention 108 has been ratified by all member States
and by nine non-member States. Importantly, the Convention has been
developed with an Additional protocol regarding supervisory authorities and
transborder data flows (ETS No. 181), opened to signature in November
2001, and which has so far been ratified by 44 member States, and
by 8 non-member States.
Note Such legal framework is
useful in the international context to protect the rights of family
members present in signatory countries, including in the Council
of Europe’s partner countries signatory of the Convention.
6 Conclusion
127. The reality of migrants going
missing in migration is multi-faceted and cannot be addressed through
one single policy. Migrants, refugees, and asylum seekers may decide
not to reveal their situation or whereabouts; others may be unable
to communicate with their families; some may have died.
128. The demand for public action is real. Families do not give
up on seeking information on the whereabouts of their missing ones.
This was shown all too clearly in the tragic Adriana shipwreck off
Pylos, Greece, in June 2023, when family members flew from all over
the world to Greece desperately seeking news of their relatives.
129. Tools do exist at different levels to help prevent migrants,
refugees and asylum seekers from disappearing. The Council of Europe
itself has many instruments which can help accompany and support States
in mainstreaming the issue of missing migrants. This can help prevent
disappearances, identify those who have lost their lives, and help
hold perpetrators of enforced disappearances to account.
130. The voice and support of the Council of Europe are essential
to enhance international co-operation with the Organisation’s external
partners and to support member States in addressing some of the
complex challenges and in harmonising standards with due respect
for data protection requirements. Such co-operation and harmonisation
are particularly needed in the case of tracing and identifying migrants
who have lost their lives along migration routes.
