Doc. 9589

14 October 2002

Persons unaccounted for as a result of armed conflicts or internal violence in the Balkans

Motion for a recommendation

presented by Mrs Zwerver and others

1.       The Assembly is deeply disturbed by the continuous suffering of those affected by the thousands of cases of "disappearances" which remain unresolved as a result of armed conflicts or internal violence in the Balkans. Many persons still missing are believed to be victims of enforced "disappearances" during the war, after they were arrested or abducted by armed forces on grounds of their ethnicity or political opinions and activity. It is feared that most of these people are dead.

2.       "Disappearances" constitute a complex human rights violation, which can involve the violation of a number of rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The "disappeared" person is placed outside the protection of the law, and subjected to human rights violations including grave violations of the right to liberty and security of the person, torture, cruel inhuman and degrading treatment or punishment, extra-judicial executions and the right to family life. It is recognized that "disappearances" may also violate the rights of the disappeared person’s family, including the right not to be subjected to torture or inhuman or degrading treatment or punishment. The crime of "disappearance" is considered to continue until the fate of the "disappeared" person has been clarified.

3.       The International Commission for Missing Persons (ICMP) has initiated a comprehensive programme of exhumations of human remains from mass graves and their identification through a DNA analysis, unprecedented both in its scale and technical sophistication. This programme has resulted in the resolution of a growing number of cases – primarily those of men and boys who were executed by the Bosnian Serb Army after the fall of the United Nations "safe area" of Srebrenica. It is vital that international funding continues to be made available to sustain this unique effort and to ensure that the bodies of those persons exhumed and identified will finally be buried with dignity.

4.       However the Assembly is concerned that, by and large, authorities of the countries concerned in the region have to date failed in their duty to investigate "disappearances", to clarify the fate and whereabouts of these individuals, and to keep the relatives of the "disappeared" regularly and fully informed, further depriving them among other things of an effective remedy.

5.       Domestic legislation in these countries does not criminalize acts of "disappearance" as distinct offences under criminal law punishable by appropriate penalties. This lacuna has compounded the problem of bringing those involved in "disappearances" to justice. As it is feared that in many cases the bodies of many of the "disappeared" persons may never be recovered, it is particularly important that more police and judicial investigations are carried out in cases of "disappearances".

6.       Initial progress has been made in a few cases, for example those in which the Human Rights Chamber of Bosnia and Herzegovina instructed the authorities to open investigations. Although the Chamber recognizes the continuing nature of "disappearances" it has declared some cases inadmissible in which individuals are alleged to have "disappeared" before 14 December 1995 (the date the Dayton Peace Agreement was signed, which provides that the ECHR is applicable law in Bosnia-Herzegovina). As a result the families of thousands of "disappeared" persons have remained without an effective remedy.

7.       There is consensus amongst those working on this issue that this violation of human rights disproportionately affects family members of the "disappeared", who are predominantly women and children. These women and children are often internally displaced and face few prospects of a durable solution to their situation: many of these women may never return to their pre-war communities because of continuing obstacles in reoccupying or rebuilding their homes. Moreover, they are extremely fearful of persons thought to be responsible for human rights violations locally who remain at large, and of those opposed to minority returns. They face problems integrating into the communities where they are now living and are increasingly destitute, after the "disappearance" of the person on whom they were financially dependent, as well as their property and land. In the absence of information on the fate and whereabouts of the "disappeared" person, wives and mothers, who still wait in hope, are reluctant to declare them dead and are therefore unable to access title to property or inherit pension rights.

8.       In view of the scope and seriousness of this human rights issue, its continuing effect on a sizeable vulnerable section of the population, and its detrimental impact on the process of peace and reconciliation in the region as a whole, the Assembly recommends the Committee of Ministers undertake a study into this serious human rights violation:

      - taking into account the overwhelming impunity for its perpetrators and the lack of access to a just remedy and reparation for those left behind who are also victims;

- exploring the possibilities of incorporation of acts "disappearances" as distinct criminal offences in the criminal codes in force in the country;

- identifying financial and other assistance necessary in order to maintain the programme of exhumations and identifications.

Signed : ¹

Zwerver, Netherlands, SOC

Dokle, Albania, SOC

Evin, France, SOC

Hancock, United Kingdom, LDR

Ilaşcu, Romania, NR

Judd, United Kingdom, SOC

Lörcher, Germany, SOC

Onur, Germany, SOC

Popa, Romania, SOC

Stoisits, Austria, SOC

Wray, United Kingdom, SOC

Yañez-Barnuevo, Spain, SOC

¹        SOC: Socialist Group

      EPP/CD: Group of the European People’s Party

      EDG: European Democratic Group

      LDR : Liberal, Democratic and Reformers’ Group

      UEL: Group of the Unified European Left

      NR: not registered in a group