OUVRAGE : A. La Vaccara, When the Conflict Ends, While Uncertainty Continues: Accounting for Missing Persons between War and Peace in International Law

Alessandra LA VACCARA

During an armed conflict and in its aftermath, measures must be undertaken in order to ascertain the fate of the missing and to address the emotional distress of families from the lack of news on their relatives. In the same contextual settings, cases of missing persons may involve criminal accountability, thereby triggering actions directed to answer questions like "who is responsible?" and "what are the circumstances of the crime?". These courses of action respond to two different needs, i.e., the need of families to know the fate and whereabouts of their missing relatives, and the societal and individual need for accountability.

The book examines how the international legal framework meets these two distinct, but intertwined, needs. It captures the diversity of international rules concerning the issue of persons reported missing in armed conflict, as well as the complexity of their implementation in the transition from an armed conflict to peace. The book shows that the duty to account for missing persons has a temporal cross-cutting nature, since its implementation requires measures before, during, and after an armed conflict. Dealing with the issue of the missing across phases − i.e., durante bello and post bellum − entails a complex interplay of international norms. Affirming the relevance of the dialectic between International Humanitarian Law (IHL) and International Human Rights Law (IHRL) in the transition from conflict to peace, the book analyzes the simultaneous application of IHL and IHRL rules on missing persons in post-conflict and proposes a set of criteria that should govern their interplay.

Measures that respond to the right of families to know the fate of their relatives cannot substitute those that are required to establish responsibility for IHL/IHRL violations and international crimes, and vice-versa. Examining specific examples, the book unveils the role that international law plays in the attempts of the international community to articulate humanitarian and accountability-driven efforts vis-à-vis post-conflict claims for information on the missing. In light of this analysis, the book explores the legal and policy aspects of how to build linkages between such efforts.


TABLE DES MATIÈRES

Foreword, Vincent Chetail
Acknowledgements
Table of Contents
Abbreviations
Introduction

1. Terminology, scope of the study, and methodological aspects
2. Structure

Chapter I. The emergence of a duty to account for missing persons and the complexity of the link between conflict and post-conflict

1. Accounting for missing persons in the history of warfare
2. 1977 et l’occasion perdue: the politics of missing persons in IHL codification
3. The place of the issue of missing persons in the law of (post-)armed conflict

Chapter II. Before, during, and after the conflict: the crosscutting nature of the duty to account for missing persons under international law

1. Missing persons and the right of families to know under IHL
2. The temporal dimensions − pre, durante, post − of the handling of information on missing persons under IHL
3. Missing persons and their families’ right to know under IHRL
4. Implications of treaty-based restrictions for the families’ quest for information

Chapter III. (Re)locating the relationship between IHL and IHRL rules on missing persons in post-conflict settings

1. The issue of missing persons under international law: At the crossroad between accountability-driven and humanitarian considerations
2. IHL/IHRL in the post-conflict legal framework: A tenable duo?

Chapter IV. The families’ claim for information and the state’s refusal/inability to respond: contextualizing two opposite claims in post-conflict

1. The inhumanity of uncertainty about the fate and whereabouts of missing relatives
2. The humanitarian duty to provide family members with information on the fate of their missing relatives under IHRL
3. The accountability dimension of the measures to ascertain the fate and whereabouts of missing persons
4. The limited scope of post-conflict lawful departures from the right of families to know the fate of their relatives

Chapter V. Accounting for missing persons in peace processes: whose duty?

1. The importance of the issue of missing persons in peace processes
2. Post-conflict responses prompted by the right of families to know: Between ad-hocism and systematization

Chapter VI. The families’ quest for information on their missing relatives: the (potential) contribution of “justice in transition”

1. Peace or justice? A false dilemma
2. The role of international justice in furthering the requests of families for information

Conclusions

1. Final remarks
2. Avenues for further research

Table of Treaties, Legislation, Peace Agreements
Table of Cases
Relevant International and National Documents
Bibliography
List of Tables

Alessandra LA VACCARA, When the Conflict Ends, While Uncertainty Continues: Accounting for Missing Persons between War and Peace in International Law, Paris/Oxford, Pedone/Hart Publishing, 2019 (466 pp.)