Commissioner for Human Rights

Bereavement in their death to feel
Whom we have never seen —
A Vital Kinsmanship import
Our Soul and theirs — between —
For Stranger — Strangers do not mourn (Emily Dickinson)

A few lines of poetry hang on the entrance of the graveyard of the island of Lampedusa, Italy’s southernmost point, located at the heart of the Mediterranean. A small number of unidentified persons who did not survive the perilous crossing to the island have been laid to rest in this graveyard. Some of their graves remain anonymous and are only recognisable from the dates and the classification numbers carved in the concrete slabs covering them.

The extraordinary efforts undertaken by a group of volunteers have enabled the retracing of the identities of some of the deceased, adding tags with names, pictures, and brief personal descriptions on their gravestones. However, most of the bodies remain unidentified years after their retrieval, and most shipwreck victims continue to vanish without a trace, outnumbering those whose fate is ascertained.

The tragedy of missing migrants[1] has reached a dreadful magnitude. Notwithstanding the many calls for action from international organisations and civil society throughout Europe, the problem is utterly neglected. According to IOM’s Missing Migrants Project, since 2014, about 25,000 persons are known to have died or gone missing in the Mediterranean in attempts to reach Europe. The phenomenon, however, does not solely concern Europe’s southern borders. In the same time span, it is estimated that about 900 persons died or went missing while moving along routes within Europe, both on land and at sea. 277 were reported missing in the Western Balkans alone – for example, in rivers in the Balkans -, while 204 are estimated to have gone missing while seeking to reach the UK through the English Channel.

A significant number of migrants, and especially unaccompanied children, go missing after their arrival in Europe. In 2016, EUROPOL warned European states of the worrying number of unaccompanied minors (more than 10,000) who had disappeared after registering with the authorities in Europe. In their investigation, the cross-border journalism project ‘Lost in Europe’ has estimated that, between 2018 and 2020, more than 18,000 unaccompanied child migrants have gone missing. The figure is likely to be a conservative estimate. Many European countries are still not able to provide complete and reliable data on the number of unaccompanied migrant children who have gone missing, also because of the lack of – or disregard for - protocols designed to address the disappearances of migrant children[2]. My predecessor flagged this issue on the occasion of his country visit to Sweden.

Tracking the invisibles

One of the most worrying aspects of disappearances in the context of migration is their inherent invisibility and the lack of accurate documentation. This is primarily due to the fact that there is no internationally accepted definition of the term ‘missing migrant’. Most international actors understand missing migrants as persons who have been reported dead or missing in the intentional process of migrating towards a country different from their country of residence[3]. Migrants whose disappearance is not directly linked to migration journeys tend to be disregarded. As a result, gaps exist in the reporting of those who lose contact with their loved ones while residing in camps, informal settlements, or detention facilities.

In addition, people on the move might not have access to a legal status in countries of transit and destination and their presence may not even be registered.

Border and migration policies have a clear impact on the risk of migrants going missing. If migration policies aim at deterring arrivals, migrants will be forced to resort to dangerous and irregular journeys. As highlighted by the UN Working Group on Enforced or Involuntary Disappearances, the failure to comply with international obligations, including widespread pushbacks by authorities could amount to enforced disappearances. Policies aimed at externalising the reception of asylum seekers could also result in migrants being disappeared in perilous circumstances.  I have repeatedly expressed concern[4] at such practices and policies.   

Obligation to protect the right to life

Member states should take all necessary measures to ensure that the disappearance of migrants is prevented and their lives and human dignity, which lie at the core of human rights, are respected[5]. When migrants go missing despite all the measures taken, member states’ obligations entail, first and foremost, ascertaining their fate and whereabouts, and retracing their names and identities. Moreover, member states are under a positive obligation (Article 2 of ECHR) to take appropriate steps to safeguard the lives of those within their jurisdiction[6] . This goes hand in hand with the procedural obligation to carry out effective investigations into the fate and whereabouts of anyone who has disappeared in violent or suspicious circumstances. This obligation should be upheld in a non-discriminatory manner, regardless of a person’ origin, nationality, legal status, and irrespective of their decision to seek safety. States are also bound to involve the missing person’s next-of-kin in the investigation and promptly notify them of their findings.

The right to the truth and the impact on families

The obligation for states to investigate is closely linked to the right of families to know the truth about the fate of their loved ones. This is essential for families to heal and find closure. The UN High Commissioner for Human Rights has concluded that the right to the truth can be considered as a non-derogable and autonomous right, which is essential to the effective enjoyment of other fundamental rights (including the right to an effective remedy, or the right not to be subjected to ill-treatment).

Relatives of the missing are entitled to know the truth, to resort to judicial remedies if necessary and, eventually, to find closure. The failure to comply with families’ right to the truth has far-reaching consequences. Families are forced to live with the uncertainty and anguish of not knowing the fate of their loved ones, enduring a mental health condition known as ‘ambiguous loss’. The prolonged torment and emotional pain to which relatives are exposed, paired with investigations that lack promptness and effectiveness, may even amount to inhuman and degrading treatment, in violation of Article 3 of ECHR – provided that the minimum level of severity is met, and that clear elements of state responsibility in the disappearance can be established.

The consequences of the disappearance of a relative can have a significant material impact on families. It usually entails a loss of income and support, which is likely to compound social exclusion. It might hamper the issue of death certificates, which are necessary to remarry, to exercise parental and social welfare rights, and to be conferred entitlements to inheritance. For instance, parents’ death certificates are fundamental to ensure expeditious family reunification procedures for orphans with other relatives. Additionally, family members of missing migrants may be migrants themselves. They may not be able to navigate the bureaucracy of the search process, they may face language barriers, discrimination, or they may be undocumented. All these elements can push them to refrain from seeking help from authorities. In the case of families residing in countries of origin, visa restrictions may also hinder the search.

The search is an expensive and time-consuming process. In the absence of official procedures, families can end up resorting to their own informal networks. In that case, their capacity to engage in the search for the truth is ultimately affected by the resources at their disposal.

Lastly, the duty to ascertain the truth also has a collective memory dimension: the public has the right to know how and why migrants went missing, especially in cases of traumatic events – i.e. in the case of shipwrecks. Restoring and remembering the truth should prompt wider reflections about how to prevent these events from occurring again.

The need to identify the deceased

To provide the necessary answers to families, member states should not only step up their efforts to track the missing, but also to identify those whose death is ascertained. The process of identification is based on the matching between post-mortem data (collected via the examination of remains, including DNA analysis) and ante-mortem data, which consists of personal information provided by families. In most member states, specialised forensic units already perform these tasks in case of natural or humanitarian disasters, or in case of criminal investigations. However, this does not regularly happen for deceased migrants.

The inaction is primarily due to legislative voids, and to a consequent lack of resources. National legislation often does not include specific provisions on the identification of migrants’ bodies. In certain situations, the retrieval of bodies may be complex, and it is often up to the public prosecutors’ discretion to require an autopsy.

Secondly, at the present stage, member states lack a well-established data collection procedure on migrant disappearances and deaths. Traditional frameworks dealing with disappearances are not apt to tackle the specific challenges that arise in the context of migration. Even when authorities are willing to respond to families’ requests, they often see their efforts frustrated by the lack of tools to do so.

In addition, it should not be forgotten that migration is a transnational phenomenon, with disappearances often occurring in border areas. According to the International Committee of the Red Cross (ICRC), transnational coordination constitutes the biggest challenge to forensic activities. Coordination issues may arise even between different jurisdictions in the same country.

A call to action for member states: some promising practices

Civil society and members of migrant communities are playing a crucial role in supporting families of the missing, and in advocating for their rights. In Spain, for instance, 102 organisations have recently launched the international campaign #VidasSinRastro, which aims at denouncing the numerous bureaucratic obstacles faced by families and demands the adaptation of existing mechanisms on disappearances to those going missing on their way to Europe.

However, member states bear the responsibility to make progress in addressing the plight of missing migrants. Search mechanisms, the retrieval of bodies, and their identification are complex and expensive operations, which cannot be performed without the government’s support. Moreover, cooperation between jurisdictions implies the exchange of sensitive information, which must occur through official channels.

Some promising practices have already been developed.  In 2007, Italy nominated an Extraordinary Commissioner for Missing Persons, mandated to arrange the centralisation of data on missing persons. Under the coordination of the Commissioner, the LABANOF Institute (‘Laboratorio di Antropologia e Odontologia Forense’) of the University of Milan has been overseeing a pilot project involving academics from several Italian universities. The project was set up in the wake of the tragic shipwrecks of October 2013 and is based on a protocol - issued by the Ministry of Interior - that allows forensic scientists to identify shipwreck victims. The Italian Red Cross and the non-profit organisation ‘Comitato 3 Ottobre’ played a crucial role in reaching out to victims’ families to gather information for identification, both in European and non-European countries.

This good practice adopted in Italy is not the only one of its kind. In Greece, authorities have succeeded in identifying deceased migrants with the support of ICRC, cooperating with embassies, foreign ministries and forensic authorities. In Spain, the Parliamentary Commission for Internal Affairs has proposed to set up an Office to assist the relatives of missing migrants.

In dealing with the complex aftermath of the war in the Western Balkans, the International Commission on Missing Persons (ICMP) has successfully pioneered a regional DNA database that has so far accounted for 70% of the 40,000 people that disappeared during the conflict. This constitutes a unique effort of regional and transnational cooperation, which could serve as an example for disappearances in the context of migration. The ICMP has played a crucial role in bringing together international organisations and states to enhance cooperation to account for missing migrants through the regular organisation of events, workshops, and technical discussions. Together with INTERPOL, ICMP has convened meetings of experts on DNA analysis to discuss the key issues related to identifying missing migrants. ICMP has also promoted the launch of a Joint Process to improve the capacity of Mediterranean states (Cyprus, Greece, Italy and Malta) to deal with cases of missing migrants.

Recommendations

To end the tragedy of people on the move going missing, deaths and disappearances must first and foremost be prevented. To this end, I strongly urge member states to do their outmost to ensure that safe and legal routes are put in place. Member States should also ensure timely and adequate humanitarian assistance along migration routes, and search and rescue at sea. All migration and border management policies should be subject to periodic human rights review. Policies that – wittingly or unwittingly – compound the risk of migrants’ disappearances should be discontinued.

Member states should also adopt a systematic approach to the collection of data concerning migrant disappearances. This data should be made accessible for the sole purpose of ascertaining the fate and whereabouts of those who went missing. Cooperation with NGOs, International Organisations and civil society could help to collect and verify such data.

I urge Council of Europe member states to take all the necessary steps to investigate the disappearances of migrants, establish effective search mechanisms, and uphold the right to know the truth for their relatives. The rights and the dignity of families of missing migrants must be upheld and protected. Dedicated procedures should be put in place for families to report disappearances and seek support. A more systematic collection of ante-mortem data from families would greatly enhance the chance of identification of the missing. When a death is ascertained, member states should ensure that the remains of deceased migrants are located, respected, identified, and buried. Families should be allowed to visit the burial site to pay their respects and should be provided humanitarian visas to do so, if necessary.

The creation of centralised regional databases on migrant disappearances could facilitate coordination and the effective implementation of all phases of the investigative process. The positive outcome of pilot initiatives highlights the need to establish a European network for the collection and exchange of ante-mortem and post-mortem data - and its untapped potential.

I urge member states to support and actively cooperate with organisations that are at the forefront of the search for missing migrants, including the International Commission on Missing Persons, the International Organization for Migration, and the International Committee of the Red Cross. Similarly, NGOs and grassroots initiatives have been filling the gaps left by state policies, providing crucial support to the families of the missing. Authorities should recognise their role and involve them in the process of search and identification.

The magnitude of the issue demands immediate action. The time has come to put an end to migrants going missing on land and at sea, along migration routes and within member states. It is also time to uphold the human rights of those who are missing, the dignity of those who are presumed dead, and the rights of their families, who deserve to find closure.

Dunja Mijatović