TOWARDS A COMPREHENSIVE POLICY ON MISSING PERSONS IN CONFLICT

AREAS: SEARCH, RECOVERY AND IDENTIFICATION OF THE DEAD

To the torment of absence
is added the sorrow of doubt. 1
No other situational environ is probably more propitious for attacks against the most
basic human rights to life, liberty and security than an armed conflict. This is primarily because
open hostilities and the employment of war tactics are simply anathema to the continued
enjoyment of these fundamental rights. Verily, violations of human rights and the threats thereto
are always impending and imminent in conflict zones. Not only are the hapless civilians who are
caught between the warring parties necessarily subjected to the fear of being killed as casualties
of war in open combat. They are also the most vulnerable parties for summary executions,
abductions, torture and forced disappearances as perpetrated by both conflict protagonists.
The employment of enforced disappearances and the like are among the most common
war tactics utilized in contemporary intra-State conflicts.2 In cases of enforced disappearance,
individuals are abducted, often tortured and killed, and are never heard from again. 3 Conflict
protagonists resort to disappearing persons for a number of reasons: for purposes of forced
recruitment in the case of the rebel movement, or as a means to subjugate/control rural civilian
communities, or to coax information and obtain resources from persons having contact with the
enemy; as to the State actors, meanwhile, EDs are commonly attributed to the military as a
means to disarticulate the rebel movements and infuse fear on those likely to join the cause of
the rebels.4 Displaced persons and refugees, or groups of people isolated by the conflict who get
separated from one another as they are forced to flee a combat area and thereafter unable to get
news of their loved ones are also classified as instances of EDs.5
In the Philippines, there are two presently raging intra-State or internal armed conflicts
one in the communist front and the other in the Moro front. Both of these theaters of armed
violence are no strangers to the phenomena of enforced disappearances (EDs) and extralegal
killings (EKs), albeit the communist conflict has had more exposure on this than the war in the
Moro front. At any rate, the fact remains that persons are continually being disappeared as the
internal armed conflict goes on. And the Philippine military, police, State paramilitias as well as
1 Breaking the Silence: In Search of Colombias Disappeared, Latin America
Working Group Education Fund, 2010.
2 Missing Persons: A Handbook for Parliamentarians, International Committee for
the Red Cross, 2009.
3 International Commission on Missing Persons, accessed at: <http://www.icmp.org/icmp-worldwide/>
4 Breaking Silence, supra.
5 Missing Persons, supra.

the rebel groups/insurgents are all responsible for EDs and EKs, yet very little action has been
done to correct these or prevent them from happening again.
It is to be emphasized that taking action against EDs and EKs in the context of the
internal armed conflicts is very crucial and must be of primordial importance. For one, it is an
international legal obligation on the part of the Republic of the Philippines under International
Humanitarian Law and International Human Rights Law, viz:
[I]t is incumbent primarily on national authorities to comply with international
humanitarian law and to act with determination to prevent disappearances. This
means not perpetrating abductions or other enforced disappearances, taking steps
to elucidate the fate of missing persons, and lending assistance to families who
have no news of their loved ones.6
More importantly, preventing EDs/EKs and providing the institutional mechanisms to
afford adequate and complete relief to its victims also play a vital role in the peace process itself
and in the healing and reconciliation process which should accompany any efforts to peacefully
end the protracted armed hostilities, viz:
Disappearances are a tragedy not just for the individual but also for families,
who are left in the dark. Not knowing what has become of a husband or wife,
child, father, mother, brother or sister is a source of terrible anguish for countless
families affected by armed conflict or internal violence all over the world.
Families and entire communities left wondering whether individual members are
alive or dead are unable to move on because they cannot forget the violent events
that tore through their lives. The problems they face are at once psychological,
legal, administrative, social and economic. The deep wounds inflicted by
disappearances continue to undermine relationships among groups and peoples,
sometimes for decades, and prevent the social fabric from healing.7
Considering the foregoing, therefore, it must be declared and pronounced as the policy of
the State to prohibit, prevent and criminalize all acts of enforced disappearances, torture and
extralegal killings in the conduct or in pursuance of an armed conflict and in any and all other
situations and circumstances. It should also be the policy of the State to provide and institute the
appropriate processes and mechanisms for the effective and immediate protection, enforcement,
prevention, redress and relief for the victims thereof, including but not limited to psychological
and financial assistance to the families of the disappeared in armed conflict areas. Although these
policies should be applicable in all situations, even in peacetime, it should be more rigorously
applied and focused in conflict areas where EDs/EKs and the threats thereof are very imminent.
The flagship implementation of the institutional mechanism for the execution of the policies
mentioned (to be discussed below) may be done in the conflict areas first before they are
subsequently enforced nationwide.

6 Id.
7 Id.

To implement such policies, existing judicial mechanisms specifically applicable to EDs

and EKs like the Writ of Amparo which is available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity 8 as well as its twin writ of Habeas
Data9 should be strengthened and reinforced with the institution of an inter-agency body who
shall be mandated, among others, to assist in the reporting and investigation of EDs/EKs or
threatened EDs/EKs, to aid in the prosecution of perpetrators of EDs/EKs, and more importantly,
undertake the search and recovery of the disappeared and in case the missing person is feared
dead/executed, to develop a systematic search and identification plan for mass graves and other
likely places where the disappeared may have been buried or disposed of. Said inter-agency body
thereafter should have the mandate to exhume and conduct mandatory autopsies on the remains,
not only for the purposes of identifying them, but also to catalog all relevant forensic information
as to the manner and cause of death which could be instrumental in a subsequent prosecution
against the perpetrators.
This inter-agency body shall be likened to Colombias National Search Commission. It
shall be headed by the Commission on Human Rights (CHR), joined by high ranking
representatives from the DOJ-NBI, DILG-PNP, AFP, DOH and other relevant government
agencies. If need be, it can also accommodate members from non-governmental organizations
which have expertise on the subject searching, recovering and identifying victims of EKs/EDs.
The first task of the Philippine National Search Commission (NSC) shall be to develop
the procedure for the effective reporting and investigation of high risk missing persons (those
suspected to be victims of EDs/EKs). As such, in the enabling law for the NSC, Congress can
mandate, for instance, that:
Section xxx. Missing Person(s) Report. The NSC shall accept without delay
any report of a high risk missing person(s) suspected to be victims of enforced
disappearance or extralegal killing whether given in person, in writing, by phone
or by electronic or other media to the extent that such reporting is consistent with
law enforcement policies or practices.
Acceptance of a missing person(s) report may not be refused on any ground. The
NSC may not refuse to accept a missing person report on the basis that:
(a) the missing person(s) is an adult;
(b) the circumstances do not indicate foul play;
(c) the person(s) has been missing for a short period of time;
(d) the person(s) has been missing a long period of time;
8 A.M. No. 07-9-12-SC, the Rule on the Writ of Amparo
9 A.M. No. 08-1-16-SC, the Rule on the Writ of Habeas Data, Sec. 1: Writ of Habeas Data is
available to any person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party.

(e) there is no indication that the missing person(s) was in the jurisdiction
served by the law enforcement agency at the time of the disappearance;
(f) the circumstances suggest that the disappearance may be voluntary;
(g) the person(s) reporting does not have personal knowledge of the facts;
(h) the reporting individual cannot provide all of the information requested
by the law enforcement agency;
(i) the reporting person lacks a familial or other relationship with the
missing person;
(j) or for any other reason.10
As an additional or corollary procedure, the NSC reporting/investigation procedure may
require sending out notifications to all persons involved (e.g. family members of the missing
person) and such other persons in a position to assist the NSC in its efforts to locate and identify
the missing person. This may include publishing informational materials (through popular print
and broadcast media). Such procedure may also include the mandatory or voluntary submission
of photographs, identification cards, and DNA samples from the missing person through his
family, or procure his dental/skeletal x-rays or finger print records and the like from the proper
authorities to be used solely to help locate or identify the missing person. All such data,
documents and information thus obtained shall be treated with confidentiality.
Because of the armed hostilities which brought forth the disappearance of a missing
person in a conflict area, the NSCs next task upon receipt of the high risk missing persons report
is to exert all efforts to determine provisionally or with finality the fate of the missing person.
And once the fate of the missing person has been determined to be death, all available means
must be undertaken to ensure the recovery of the body and any personal effects. 11 Thus, the NSC
shall develop a systematic search plan of places/locations where bodies of the disappeared may
be buried or disposed of. Forensic experts have already suggested taking of aerial photos and
satellite mapping, particularly of riverbanks and certain locations in the conflict zones, in order
to identify areas where there may be mass graves. 12 This may be entrusted to the NSC in the
exercise of its mandate. Dead remains of EKs/EDs victims have also been known to be dumped
in rivers or other bodies of water. Thus, using computer modeling to map trajectories for bodies
in the river, etc. within the conflict areas can be undertaken to identify likely search locations
where dead bodies might be found.13 Finally, the NSC may be granted jurisdiction over official
cemeteries and its peripheries for the purposes of its search and recovery functions since most
dead remains of EKs/EDs victims are actually buried in these places. To this end, pertinent
provisions of the Sanitation Code (P.D. No. 856) must be amended or repealed.
Pursuant to the mandate of searching, locating and identifying missing persons, the NSC
must be given power to exhume and perform mandatory autopsies on dead remains of human
10 Taken from Model State Missing Persons Statute, accessed at
http://www.projectjason.org/downloads/ModelLegislationFinal.pdf
11 Missing Persons, supra.
12 Breaking the Silence, supra.
13 Id.

beings found in mass graves or other places where unidentified human remains are discovered.
With the help of DOH officials and law enforcement medico-legal doctors, the NSC can
undertake the full and official examination of said remains and identify them forthwith by
matching at once the dead bodys identifying marks with the identification details, DNA,
fingerprint, etc. of those reported as high risk missing persons. In this way, every case of
uncovered deaths can be immediately ruled out or finally determined to be the ones of the
missing persons. In all cases, whether solved or those which shall remain open, jurisdiction over
the remains shall rest with the NSC until all pertinent procedures shall have been undertaken.
The dead remains shall be released to its family and loved ones, if solved and determined,
otherwise, the NSC shall provide proper burial for the dead with sufficient documentation for
cases when the matching claims or reports are finally made.
It is truly a lamentable reality that in instances of EDs in times of conflict, the fate of the
missing person is most likely that of death. But because there is no sufficient mechanism in place
for families of those who disappeared to definitively determine such death or locate and recover
the remains of their dead loved ones, thousands of people still live in the dark languishing in the
torment of not knowing what happened to their kin. The victims families no longer even seek
prosecution of the perpetrators at times. Justice for them may simply, desperately take the form
of knowing what has come to be of their lost relatives. As long as these missing persons
remain unaccounted for, their families and their communities may not be able to forget and move
on to rehabilitation and reconciliation. It must be borne in mind and taken to heart by the
authorities of the Philippine government that such torment and anguish cause devastating bruises
in the collective psyches of those wronged. Thus, even if the government wins the internal
conflict against the rebels, such unhealed wounds may yet destroy the very fabric of society,
undermine relationships and trusts amongst peoples, and pose threats anew of another impending
conflict. The cycle of hostilities and conflicts will never die unless justice and closure are
provided for.