By Adriana Pozos and María Elizondo, national coordinator of the missing persons program and legal adviser, respectively, of the International Committee of the Red Cross for Mexico and Central America.
Five years have passed since the perseverance of the families of disappeared persons materialized the approval and entry into force of the General Law on the matter of disappearance of persons. There have been several steps taken for its implementation, although it is also necessary to point out that there are multiple and deep challenges for this legislation to offer timely and accurate responses to those who do not know where they are or what happened to their loved one. One of the most important: eliminate the figure of a person not located so that the location processes are not obstructed by restrictive interpretations and unnecessary formalities.
As part of its humanitarian work in Mexico, the International Committee of the Red Cross (ICRC) deploys actions to accompany and advise families of disappeared persons and the authorities, this includes strengthening the law.
This work allows him to verify that the attention given by the authorities and agencies to cases of disappearance from the first hours increases the chances that the disappeared person will be located alive. In other words, carrying out an effective search from the first hours of the disappearance could result in the location of more people. This is key in a country where almost 110,000 missing and missing persons are reported according to official data.
For this reason, and as part of a five-year review of the Law, the ICRC stresses the importance of pursuing effective mechanisms for immediate search. One of the routes is the elimination of the figure of unlocated person from the current legislation. This would make it possible to extend legal protection to any absent person.
The law defines a person not located as one “whose location is unknown (…) and his absence is not related to the commission of a crime.” This leaves these people unprotected because there are currently investigative procedures necessary in the first hours of the disappearance of a person -such as geolocation in real time and the recording of telephone calls- that can only be requested when there is a presumption of a crime.
Through this amendment to the law, all those whose location and whereabouts are unknown could be legally recognized as missing persons, regardless of whether or not their absence is related to the commission of a crime.
The Approved Search Protocol (PHB), which stems from a provision of the General Law, instructs that every person must be searched from the moment the authority becomes aware of their absence. However, the PHB makes a distinction between the types of search actions that will be implemented if the person is presumed to be absent due to the presumption of having been a victim of crime (to be missing) or not. In other words, it is considered “not located”.
This distinction in the legal category has operational implications that differentiate whether or not the ministerial authority opens an investigation folder or whether investigative acts are carried out informally. In fact, it can be left to the discretion of each authority to decide when there is a presumption of crime.
Let’s take the hypothetical example of a missing woman: the relative arrives with authorities to report her absence in the early hours and due to interpretations of what happened, they request that she return later because the young woman could have left with a sentimental partner or is in a meeting with friends. Days later she is still missing and vital hours were lost to carry out investigative actions that could have increased the chances of finding her.
The implementation of effective immediate search actions must also foresee the differentiated actions to be carried out when the disappeared person has attributions of vulnerable populations, as is the case of people in human mobility, women, girls, boys, adolescents, defenders of human rights, etc.
While it is true that remote tracking and operational deployment actions, as provided for in the PHB, must be implemented in all cases, it is also true that for these populations the additional risks linked to gender violence, the responsibility of countries to protect the best interests of children, as well as the additional risks to which populations on the move are exposed by being far from their support networks.
In a scenario in which it is essential to examine all the methods to prevent disappearances and respond to the needs of families who have lost contact with a loved one, the ICRC emphasizes the need to eliminate the figure of missing person, as well as as well as to intensify the immediate search with a differentiated approach. In the same way, it puts on the table the pending of continuing with the efforts from the states to harmonize their local legislation.
It is also essential to provide specialized prosecutors’ offices and search commissions with adequate legal tools for operation and the necessary resources that allow them to adequately form interdisciplinary search groups with a differentiated approach.
Let us remember that behind the official disappearance numbers there are mothers, fathers, brothers, sisters, spouses, daughters and sons who are desperately looking for missing relatives. Let’s also remember that the first few hours are crucial for the search. We reiterate: all disappeared persons have the right to be searched for immediately and because time is pressing, #DisappearedSinceDayOne.
The ICRC, founded in 1863, is an independent, neutral and impartial international humanitarian organization that provides protection and assistance to victims of armed conflicts and other situations of violence. It has 20,000 employees working in 100 countries around the world. It is part of the International Red Cross and Red Crescent Movement, the world’s oldest and largest humanitarian network, and works hand-in-hand with its national Red Cross partners to expand its work.
*This article was published on 19 January 2023 in “En clave humanitariana”, the ICRC blog on Animal Político.
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