In this episode we continue the  conversation with Katherine Bomber, the Director General of the International Commission on Missing Persons (ICMP). Our discussion builds on our conversation in the last episode to investigate more in depth the problem of missing persons and learn from Kathryne’s expertise and insight on this important topic. We talk about why people go missing, what has improved over time in addressing the issue of missing persons, what states can do to contribute to the solution and Kathyne’s recommendations for ways forward.

For more on the ICMP go to: https://www.icmp.int/

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Intro 

[00:00:00] Dr. Miranda Melcher: Hello and welcome to Just Access! Too many individuals and groups around the world today are denied access to justice. Such access is vital for making human rights effective and securing human dignity, especially for those in situations of vulnerabilities such as women, children, minorities, migrants, or detainees.

[00:00:24] In this podcast series, we speak to academics, international legal experts and human rights advocates about hot topics in international law. Our goal is to expose and highlight situations of structural injustice and explore unusual or creative solutions to these issues aiming to further protect and enforce the rights contained in international treaties.

[00:00:45] My name is Dr. Miranda Melcher, and I’m a Senior legal Fellow at Just Access. In this episode, I continue my conversation with Katherine Bomber. She is the Director General of the International Commission on Missing Persons, the ICMP, which is based in the Hague. Our discussion in this episode builds on our conversation in the last episode to investigate more in depth the problem of missing persons and learn from Kathryne’s expertise and insight on this important topic.

[00:01:12] Hope you enjoy the rest of the conversation with Katherine Bomber.

Interview

[00:01:16] Dr. Miranda Melcher: So thank you for sharing with us and telling us a bit about the current work that you’re doing and also how it relates to lessons learned.

[00:01:34] You already mentioned that the ICMP is an international organization, and that’s different from being an NGO, that’s different from being a UN body, and the ICMP has an agreement on the status and functions of it from 2014. Can you tell us a little bit about that agreement and how it kind of got to that point? It’s a relatively unique thing, so can you tell us a bit about it?

[00:01:53] Kathryne Bomberger: Yeah. There are many international organizations in the world of which the UN is one. And there are other similar sized international organizations, because we had to research this to find out so that we could work with states, to ensure the accession of multiple states to ICMP.

[00:02:09] So what happened was in the former Yugoslavia where we started our work, as I said earlier, there were temporal and geographic limitations to our work. And then, you know, the Kosovo conflict broke out in 1999 and immediately we were asked and invited to respond to that. Then the Thai tsunami happened, and this is quite interesting because, you know, while we had been working in the former Yugoslavia, we had largely been dealing with persons missing from armed conflict.

[00:02:38] Then the EU asked for our help along with Thailand in the Maldives regarding persons missing now from a mass disaster, the scale of which was unheard of at that point. And that particular response to that disaster was interesting because it was the first time in history that Interpol and ICMP, two international organizations, and states responded.

[00:03:01] In the past it was more ad hoc. You can even say the response to 9/11, about 30 domestic institutions ran to New York to try to assist. So trying to build capabilities where international organizations, rule of law mechanisms, become first responders, help states regardless of missing persons cases, became clearer and clearer.

[00:03:22] Colin Powell was at that point the Secretary of State and our primary donor at that point, that’s not the case anymore, although the US and many governments play a role so we are truly intergovernmental and international in scope, but a decision was made by the governments with the US taking the lead at that point to expand ICMP’s remit, not only from the Western Balkan, but to deal with more than just missing persons cases from the conflict. And in 2013, we held the first conference on missing persons here in the Hague, where we presented, I should say for the first time, the concept that missing persons should include not only those missing from enforced disappearance, because there is a convention on this, and this is typically what you’ll see in Latin America, you know, dealing with the desparecidos, you know, the enforced disappeared. But in fact, it should deal with all missing persons cases, whether they’re missing from armed conflict, whether they’re missing from human rights abuses, natural or manmade disasters, migration or organized crime, or whatever the cause is because you don’t know what the cause is until you find them and you investigate the disappearance.

[00:04:33] So all of these things put together, let’s say, taken in there as a whole, a need to have a global organization, that would work beyond Europe, because of course Rwanda had happened at the same time and the question we always got was, why not Rwanda? Well, we were created to deal with the former Yugoslavia, but this is a global issue, with global warming and other factors, actually the number of missing persons is on the rise and sometime you don’t know what the circumstances are of a missing person. A Syrian can be missing for multiple reasons. So anyway, a push was made as early as 2003 by the government that support ICMP to become a treaty based international organization.

[00:05:14] I would never do this again in my life. It took 12 years. It was really a struggle. It took a lot of time. It took really a lot of pushing. This is not just about the topic, it’s about the sovereignty of states. They don’t like to give up any bit of sovereignty, and it’s also about, Providing assessed contributions, which, you know, a lot of states grumble about, as you know, with the un.

[00:05:33] So creating a new international organization is not easy, but we managed through the skin of our teeth, to get five governments to sign an international treaty in 2014. The treaty went into force in four of those countries in 2015, so it’s now enforced around the world. The period for signature ended in 2016, and now all states are invited to accede to our treaty and Germany is the last state to do so. So it’s open and we would welcome all states. It has been it a very difficult process, but it’s important for the world.

[00:06:08] Dr. Miranda Melcher: There’s some kind of obvious benefits to signing this Treaty, but also as you’ve mentioned, some clear sort of reasons that states may not be the most eager to join really any sort of new treaty. So what would be the benefits to the organization, the benefits to the cause, for more states to a accede to and ratify the treaty?

[00:06:29] Kathryne Bomberger: Yeah, the treaty basically recognizes ICMP status and functions, so we needed it. It’s not like the treaty establishing the OPCW, which is a ban on chemical weapons. So it doesn’t mean, unfortunately, that by signing the treaty on ICMP status and functions, that that would mean a stop to, you know, or to preventing persons from going missing.

[00:06:50] But I think there is an ethical reason to do so, and I think that would be the biggest argument, that states would join a Club of Nations that would participate in ensuring that governments around the world find missing persons and investigate their disappearance that we move on as a world from this purely humanitarian view on the issue, which by the way, really does a disservice primarily to women who happen to be the primary benefactors when you deal with this issue as a human rights issue because they are the living, and this is not an issue about the dead. The dead are dead. We respect them. But securing human rights is about securing the rights of those who are still alive, who are primarily women.

[00:07:33] And that’s what we found across the world, which I can get into. So it would mean, I think it would be for good ethical reasons, uh, that this is a global issue that warrants attention. And as the day of the elimination against violence against women is coming up, we’re gonna highlight this issue together with UN Women because of the specific impact it has on women – whether they’re target for disappearances or whether they are those left behind. But I think that would be the best reason I can provide.

[00:08:02] Dr. Miranda Melcher: Wonderful. Thank you. This is obviously an issue of international law. But of people, of actual humans on the ground, which is such a core part of your experience and the organization’s work. So given the number of places that the organization operates in and has operated in over time, help us understand why do people go missing? How many people are we talking about?

[00:08:29] Kathryne Bomberger: Yeah, it is incomprehensible still for me to this day. Having seen everything that I’ve seen, the brutality that we are capable of committing as human beings against each other is, I mean, flabbergasting. And to see it firsthand… I don’t know. I really don’t. I mean, after all these years, I don’t know.

[00:08:51] You know, I’ve worked in different places, on different human rights issues. How we can kill our fellow human beings and then not even reveal the fact that we’ve done it, you know, hide these facts, cover up these facts because in fact, that’s what mass graves are. It’s a coverup of atrocities that took place that were committed by a state or other actors acting be on behalf of the state or non-state actors.

[00:09:16] So it’s, it’s phenomenal to me. I mean, having come back from Mexico, sitting in a room largely with female survivors, I think there was one man in that room in the state of Nuevo Leon in Monterey, and hearing them again tell their stories. It’s just inconceivable. You know, one woman had lost her daughter with 20 other women, for example.

[00:09:39] I mean, obviously, you know, these women were targeted. I mean, I won’t even get into the grotesquesness of things that we’ve seen, you know, the extent to which people go to hide other human beings. So, this is why, returning to your question about justice, justice is so important. I do believe that if the more of these cases are investigated, which is why I firmly am against simply a humanitarian approach to this issue, there have to be proper investigations where the state takes on that responsibility to reveal the crimes that were committed to hold those perpetrators to account, and I think that’s the best way to prevent these things from happening again.

[00:10:19] Because if states deal with this you know, if there’s impunity, if there is no justice, than I don’t think states can move on, there has to be an honest reckoning with what happened in the past. Now we’re at a new point in history here, I mean, cuz there was a historical shift in the 1990s, through legislation, international law that underscored this point of view.

[00:10:41] Whether it works or not, I’m making a statement that I think it would, we don’t know because we’ve never been here before. But I think we have to try it and I think it will work. I mean, if just on a domestic level, the more perpetrators are held to account for atrocious crimes like this, I think the less capable we as society will be to tolerate this. I mean, there has to be a reckoning and this has to go to court.

[00:11:06] Dr. Miranda Melcher: And have we seen any changes over time or place in the time you’ve been with the ICMP, either in terms of the bad things or in terms of the prosecution and justice?

[00:11:19] Kathryne Bomberger: In the time that I’ve been here, it has really changed. When we were starting, the whole idea of dealing with missing persons was new. The idea that states would take responsibility was relatively new. How states do this was unheard of. I mean, the first commission or, you know, mechanism on missing persons was in the Balkans. That was really a demonstration of state responsibility. There were other things here and there. Cyprus had created a committee, but the island doesn’t have one unified voice on this still. It’s kind of a frozen conflict. So the Balkans really did set the standard for this.

[00:11:56] But over time, I think the world, through our work, the work of the International Committee for the Red Cross, the Argentinian team, the Guatemalan team, and we’re certainly not alone. There are many other organizations that do this work through the creation of the International Criminal Tribunal for the former Yugoslavia, through other tribunals, through the work of the Office of the High Representative for the UN and so many other organizations.

[00:12:20] It’s really taking off. I think there’s more and more of an understanding that these cases have to be investigated and this has to stop.

[00:12:30] Dr. Miranda Melcher: Well, that’s encouraging to hear.

[00:12:31] Kathryne Bomberger: It is! I mean, we’re just at the brink of possibly this happening. I hope we don’t get a kickback, but it’s better than it was.

[00:12:39] Dr. Miranda Melcher: That’s good. This sounds maybe like a silly question, but why not ask the experts questions and see what they tell us? Are there essentially low hanging fruit solutions to helping resolve issues around missing persons? Are there things that we can see, oh, if we did this, that would help. Than doesn’t mean that we can necessarily do it, but are there solutions like that that exist?

[00:13:06] Kathryne Bomberger: It’s a very good question because for example, we use DNA and we started using DNA in 2000 to address Srebrenica because the bodies were so heavily disarticulated. And what I’ve seen over time is that many people think DNA is this magic wand. And it is a fantastic tool. It’s awesome. 

[00:13:25] And the cost of this has gone down, it’s incredible. Even the way we’ve used it, I mean, we couldn’t have even foreseen and we didn’t even know if it would work when we started using it. So it’s completely amazing. But I think I’ve seen people think that this is the low hanging fruit, that if you just use DNA, it’s gonna solve all your problems.

[00:13:44] But this advanced technology cannot solve problems unless there is political will. So you can’t get around the fact in the end, and that’s why I started the discussion today about state responsibility. If the state doesn’t take responsibility, all the most advanced software solutions for data systems, the most advanced DNA technologies, and believe me, we’re advancing these technologies, which is great, will not work.

[00:14:09] And that to me would be a low hanging fruit situation. So, this issue really requires that political will, that those who are responsible take responsibility for what happened. Um, even if they weren’t the perpetrators, they must, a state must – a future Syria, for example, has to take responsibility for atrocities committed. And I, I don’t see right now how that’s gonna happen. 

[00:14:37] Dr. Miranda Melcher: To be perhaps even more idealistic, not just about taking responsibility for things that have happened, what could states do to prevent people going missing in the first place?

[00:14:49] Kathryne Bomberger: I think the two go hand in hand. Investigations, as I said earlier, hopefully deter criminals and others from engaging this again. But what can states do now? Well, if we look around the world, you know, Canada’s a good example. I think the discovery of these graves and dealing with it now is important. In the United States, you know, and in Europe – Europe today has the highest number of dead and missing migrants in the world. Acknowledging this, being honest about it and saying, in fact, we must find both citizens and non-citizens, is important. So I think, well, I would also say supporting ICMP, because in a way having an international mechanism that is set up and ready to go to respond to these cases.

[00:15:37] I mean, for example, with Ukraine, if we’d had more funding and we’re working in Ukraine because Ukraine actually invited us in 2014 after the discovery of the first mass grave in Slaviansk, in 2014. We didn’t get any funding cuz we were still voluntarily funded until this year, until after the conflict started. Had we been able to set up mechanisms to deal with earlier disappearances in Ukraine from Crimea, from when the war actually began, I think we would be in a different place than we are today, scrambling. So, to answer your question, I think having this international organization and others, you know, working together, understanding the mechanisms that exist and taking this issue seriously, which I think is happening more and more, is important to respond and eventually deter.

[00:16:24] And one more thing. Each state should sign the International Convention on the Protection of Prisons from Enforces Disappearance. That’s critical.

[00:16:32] Dr. Miranda Melcher: These are all very good points. And at the risk of asking you to repeat yourself, that’s what states can do. What about the international community?

[00:16:43] Kathryne Bomberger: Well, if the international community encourages states to sign, that would be good. And encourage the states to accede to our treaty that would also be good. And I think also what I would really like to see, would be a dream, would be to have families of the missing from around the world come together because unless you hear them, unless you understand who these survivors are and what their needs are and, you know, these are my teachers. When I came in 1998, human rights issues were not new to me, but the issue of missing persons alone was, you know, new to me. So listening to families of the missing is key.

[00:17:18] So if we were able to bring them together, to have annual meetings, to have an international conference of just the survivors and allow them to speak for themselves for people to understand just the global reach of this issue and how it has tentacles that go deep down into countries that unless it’s resolved and they can tell you this themselves, that you will have cycles of violence.

[00:17:46] I think this is one of those issues that if states build capacities to address it, you might be able in some cases to end cycles of violence, but certainly the survivors can say it far more eloquently than I can. So bringing them together and allowing them to speak, and this has happened with Syria – Syrian women in particular, have done an amazing job in getting the UN to listen to them.

[00:18:10] So we wanna get funding to bring them together on an annual basis to speak for themselves.

[00:18:17] Dr. Miranda Melcher: That raises an interest question about the level of these conversations. Are solutions to missing persons issues at the national level? Are they at the international level? Are they both? How do we think about those different levels?

[00:18:35] Kathryne Bomberger: They’re definitely at both. There needs to be, if you were to build a process, you would include doing all of these things at the same time. You would need to build the domestic capabilities within a state, like for example, in Ukraine, you need to harmonize the institutions because right now the Ministry of Interior, the Ministry of Justice, the Ministry of Health, the security services, the prosecutor’s office are all not working together at the moment. So you need to build those building blocks, but you need them to look at international law and to adhere to that, to help them build those building blocks. So in order for those institutions to work together in line with the rule of law, there has to be those two. 

[00:19:14] Then you need to have families of the missing, let’s say, use Ukraine again, understand the issue, but they also need to know what happened in other places. So allowing these families to meet with other survivors from different countries is important. Having an international court, whether it’s the ICC, or other mechanisms, ensuring that our organization works together with international partners, ensuring that the international community is in sync is important.

[00:19:40] So these are all the various building blocks that we’re always dealing with as ICMP in every single country where we operate. So we’re working at the domestic level, the civil society level, the legislative level, the court level, and the international community level all the time.

[00:19:57] Dr. Miranda Melcher: I can see why there’s never a dull moment. So, you’ve spoken a little bit about the things that have changed over your time in the ICMP and that a lot of those changes are positive, right? That there’s a lot more awareness of this being something to take seriously as evidenced by the success, congratulations, of getting a treaty, which is great. But if you think back on the whole of the time and looking today at the global nature of the organization’s work what would you maybe highlight as maybe the top one or two things that you think are the most promising, but also maybe the top one or two things that you’re worried about and sort of keeping an eye on, when we think about the future of this work on missing persons.

[00:20:39] Kathryne Bomberger: Yeah. I think it’s two sides of the same coin. With the Western Balkans, I think have demonstrated in the context of Europe anyway, but also for the rest of the world what can be done when governments decide to work together and families from across the political conflict divide, decide to work together.

[00:21:00] And that’s a model, I think, for the rest of the world. If Canada seeks to embark on addressing this issue of missing indigenous Metis and First Nations people, as well as the many women who disappeared, who were targeted in Canada, that would be a big step. I think that would also show the world, both of these things show the world that this is not exclusive to the global South.

[00:21:23] So if the Global North, for example, can show that it can take responsibility itself, hopefully it can demonstrate to the rest of the world that it can also, these other countries can do the same. And if Canada can reconcile with its past and the United States, by the way, maybe this will serve in an as an example, because the United States also committed crimes against its own indigenous populations, that would show way forward. I think that’s extremely important. 

[00:21:50] What worries me at the moment, is not doing that. So for example, in Europe, the fact that there is such a high number of dead and missing migrants, according to IOM, there are 50,000 dead and missing migrants globally, of which half 25,000 are missing in the context of Europe.

[00:22:08] And we all know what’s happening. We’re also working in Libya. Where many of the migrants who did not make it into Europe were sent back across the Mediterranean, had been put in prison or ended up in mass graves in North Africa. By not taking responsibility for these cases, we undermine our democracies and we create political instability and we don’t shine a light on the way forward.

[00:22:33] Cuz if we can do it and ensure end to discrimination against migrants and others and non-citizens, in the west, so to speak, and build bridges with Africa and build bridges with the global south and demonstrate that we’re willing to deal with dignity and with decency and inline with the rule of law and human rights, all persons who go missing.

[00:22:55] That would be a demonstration, I think, for other countries, because otherwise it’s hypocritical. You know, we get a lot of funding from western governments to work in Iraq or to work in Libya or Syria, and we’re very grateful for that, but it’s very important that these same states also show that they will take responsibility on the very same issue they’re asking other states to do. 

[00:23:18] Dr. Miranda Melcher: That makes sense. That seems a pretty fair standard to hold everyone to. So thank you for sharing that. And as my final question, I’m wondering, for the listeners who may not themselves be state representatives, or have personal finances that they can contribute to fund the work the ICMP is doing, do you have any suggestions or ways for young interested people in topics to get involved or support your work or anything you’d like to share?

[00:23:48] Kathryne Bomberger: Yeah. I think one of the fun parts of the job is giving lectures at universities and getting a lot of younger people to get involved in this. And one thing that we can do is just show them, you know, because I think when you study international relations and you study this at school, it all seems so theoretical. But to go out in the field and actually do this work, just go out. I mean, the best experiences, now that I’ve been in the so-called headquarters, it’s a bit dull, but being out in the field is the best experience anyone can engage in, listening to people, traveling, doing this type of work, whether it’s missing persons or another human rights issue.

[00:24:25] Whether it’s a UN or a small NGO, or whether it’s helping, you know, Syrian refugees or whatever it might be. Just get out there! Get out of school! School’s good, but, get out and do this work and do something and you can change the world. I firmly believe it. I used to be very cynical. I was a big rebel, very cynical. So this has surprised me a lot over the years. I think the biggest learning thing for me is that you actually, you kind of can change the world for the better. I mean, this is a very, very, very small thing. Don’t get me wrong. It’s a teeny thing, but it’s something that we can contribute to and you can do something. So I would really encourage anyone who’s listening, who’s young in school to, to get out there and just do it even while you’re in school.

[00:25:10] Don’t wait till you graduate. Just get out there. It’s the best experience you can have.

[00:25:15] Dr. Miranda Melcher: What a wonderful note to end on. Thank you so much for your time and expertise.

[00:25:20] Kathryne Bomberger: Thank you Miranda. It was a pleasure.

Outro

[00:25:22] Dr. Miranda Melcher: Thank you again to Katherine Bamberger, Director General of the International Commission on Missing Persons for speaking with us on these episodes. Stay tuned for future just Access interviews and podcasts.

[00:25:40]