There is an urgent need to clarify how international law protects rights in situations of border death and loss, to define states’ duties, and to recognise the rights of families.
Europe is experiencing its greatest influx of refugees since the second world war. The UNHCR estimates that 1,015,078 persons made irregular journeys to Europe by sea in 2015, of which 856,723 came to Greece, 153,842 to Italy, and 3625 more died or went missing while attempting that sea journey.
Between 1 January 2016 and 30 June 2016 there were 264,000 arrivals by sea in the Mediterranean. Of these, 69 percent were from the top ten refugee producing countries. Since 20 March 2016 the EU/Turkey Agreement has come into force and there have been changes to the movements of refugees and migrants.
Whilst the numbers of deaths in relation to the numbers of persons undertaking the dangerous journey may be regarded as small, any such death is one too many. Already this year at least 4000 people 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.
The majority of those who have arrived in Europe have fled war, conflict or persecution. While about 4000 are known to have died in the first eight months of 2016; 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.
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 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 guiding principles will draw primarily on experience and knowledge gained from events arising in the course of the current refugee and migrant flows across the Mediterranean region, but it is intended that these guidelines will have a wider reach internationally and act as a catalyst for action, including by human rights organisations whichhave not thus far worked on these issues as well as those in places such as Argentina; Chile; elsewhere in Central and Southern America; Japan and more widely in Asia.