There is an urgent need to clarify how international law protects rights in situations of border death and loss, to recognise the rights of families and to define states’ duties.
The movement of people, both through internal displacement and across borders, is part of every day life for millions and in recent years many people have set out on migrant journeys toward Europe. According to the UNHCR, the vast majority attempting this dangerous crossing are in need of international protection, fleeing war, violence and persecution. Every year these global cross-border movements continue to exact a devastating toll on human life both on land and at sea.
The International Organization for Migration Missing Migrants Project states that determining how many die or are killed is “a great challenge”, that, at a minimum, 46,000 migrants have lost their lives or have gone missing worldwide since 2000 and that the actual number is no doubt greater given the many who are never found. Reporting mechanisms on the African routes are lacking and the number of deaths on the Central American routes is largely undetermined. We also have very little idea of how many have perished in the Gulf of Aden, the Bay of Bengal or the Andaman Sea.
Already in 2017 at least 4002 people are known to have died. Most were women and children. Unhappily, the deaths will continue to occur, in particular when States, including those parties to the 1951 Refugee Convention, struggle to meet their moral and legal commitments.
Very many of those who have arrived in Europe have fled war, conflict or persecution. While about 4002 are known to have died since 1 January 2017; many more are missing. The names of most of the dead and missing are not known; their families have not been traced, and where bodies have been found, they are often buried in unmarked graves. Families do not know if a missing relative - a parent, spouse, brother, sister or child - is alive or dead. As has been said by UN Special Rapporteur, Agnes Callamard, in her August 2017 report ‘Unlawful death of refugees and migrants’ “This represents one of the great untold tragedies of this catastrophe, one that triggers the responsibility of States to provide dignity and accountability in death.”
Procedures for how the dead should be recorded, their mortal remains identified, and families traced in situations of conflict are set out in international humanitarian law. Drawing on international human rights law, principles have been developed to protect the rights of the missing and their families in other situations of death and loss: enforced disappearance, internal displacement, and humanitarian disaster.
But attention has yet to be given to the legal duties of states to identify the dead, and to protect the rights of families in the context of refugee flight and irregular migration. It is important to clarify the steps states should take to investigate disappearances and deaths, identify those who die, provide a decent burial to the dead [whether or not they have been identified], and trace their families, including their children. It is also important to consider how and by whom data taken from bodies, and from families whose relatives are missing, should be held, and under what safeguards. This will involve a review of international law to ascertain how it should apply, to identify gaps in its provisions and propose measures to close those gaps, in the specific circumstances of refugee and migrant death and loss.
We believe there is a need for principles, informed by international law, which we will propose in a new protocol, setting out the steps which states should reasonably be expected to take to record the missing, recover, preserve, and identify the dead; to collect and retain appropriate data to facilitate future identification; to enable repatriation or decent and dignified burial and to respect the rights of family members, including their right to know the fate of relatives who are missing or who have died. The aim of these principles is to assist states, civil society, and others, including those working in the field, to respond to these tragedies in ways which respect human rights and human dignity.
These international guiding principles will draw on experience and knowledge gained from events arising in the course of the current refugee and migrant flows across the Mediterranean region but also upon the experience and knowledge of other human rights organisations across the world in places such as Argentina, Chile, and Central and Southern America, and Australia, as well as garnering what may be of relevance from recent different events in places such as Japan and the Ukraine. It is intended that these guidelines will have a wide reach internationally and act as a catalyst for action, including by human rights organisations which have not thus far worked on these issues.