Photo: ICMP
Oleh Klymchuk: Hello and welcome to Ukraine Calling, the English language podcast from Hromadske Radio in Kyiv. I’m Oleh Klymchuk, and we have in our studio a guest from the Netherlands, Ms Kathryne Bomberger. Ms Bomberger is the Director General of the International Commission on Missing Persons, and I’ll be talking to her about the tasks this commission performs in the world, and is going to do in Ukraine in particular. I’m glad to meet you here today in the studio, Kathryne. And my first question I think would be, tell us in some detail about yourself, your background, and how you started working for the International Commission on Missing Persons.
Kathryne Bomberger: It’s a pleasure to meet you Oleh, and thank you for this interview. The International Commission on Missing Persons was created at the behest of President Clinton, probably a long time before many of your listeners were born. So in 1996 at a G7 summit following the cessation of conflicts in the former Yugoslavia which ended at the very end of 1995, through the Dayton Peace Agreement. There were a large number of persons missing as a consequence of that conflict. 160,000 people died and of that number 40,000 were unaccounted for and those that were at the G7 summit in 1996, many of them having experienced World War II, knew that having large numbers of missing persons posed a threat to future peace and stability and to the rule of law and to democracy. So ensuring that governments took responsibility for finding this large number of missing persons was the mandate that ICMP was given in 1996.
Originally we were a blue ribbon commission. We were supposed to, as they say in English, go out of business once these people were found, but in fact we took a very different track, and I’ll explain in your radio podcast today why that is. But today I should just say that of the 40,000 people that went missing from the conflicts in the former Yugoslavia over 75 percent have been accounted for and that’s unprecedented, never happened before. So as we begin our work in earnest in Ukraine following the signatures of memorandums of understanding andmemorandums of cooperation with the Ministries of Justice and Health, we want to ensure a high level of success where the government takes responsibility for finding missing people.
Oleh Klymchuk: Memorandum: what kind of document is it? Does it mean the cooperation between your organization and Ukrainian bodies starts immediately?
Kathryne Bomberger: Let me explain a little bit, just to give you a bit more background before I directly answer your question. So while we were created in 1996, there were temporal and geographic limitations to our mandate specific to the former Yugoslavia and the time period of those conflicts, originally 1991 to 1995. By let’s say 2002, we already were making progress with the states and finding a large number of missing persons and the countries that were supporting us said, well, your work doesn’t only pertain to the conflicts in the former Yugoslavia, the issue of missing persons is a global one. So by 2015, we became a treaty-based intergovernmental organization. And in 2015, we also moved our headquarters from Sarajevo to the Netherlands, to the Hague, through a cooperation agreement with the government of the Netherlands, where we have privileges and immunities, which means we can store data and do other very good things to help governments.
So our mandate is in fact to secure the cooperation of governments, to find missing persons and investigate their disappearances, whether they’re missing from war, human rights abuses, organized crime, migration, natural or man-made disasters, or other circumstances where persons go missing for involuntary reasons. So to answer your question, the way we do this work is to build the capacity of governments or others involved in the conflict, specifically during peacetime, and I’ll explain why this is important as well, to find missing persons.
Kathryne Bomberger: And in the case of Ukraine, of course, Ukraine has laws and institutions that pertain to the issue of missing persons. But after the invasion of 2022, the numbers now are enormous. There are a minimum of 30,000 missing persons, and the numbers continue to rise. So what now needs to be done is to create a system within Ukraine that is able to scale up, in other words, capable of finding an abnormally large number of missing persons while Ukraine is at the same time fighting a war. And now this is unprecedented. There has never been a country that has engaged in active conflict and at the same time engaged in active investigations into war crimes and other atrocities, including those linked to missing persons cases. So this is really amazing what Ukraine is trying to do. It’s unprecedented, which means we’re in uncharted territory. So our hope through making these agreements with the various institutions, meaning the Ministry of Justice, Ministry of Health, Ministry of Interior, Ministry of Foreign Affairs, the SBU, in other words, the other ministries and institutions that play a role in this issue, is to build Ukraine’s capacity to meet this demand, a demand, of course, that no one would have thought before 2022 Ukraine would have had to deal with. So this means changing the modus operandi to scale up to meet the needs of conducting tens of thousands of investigations at the same time.
Oleh Klymchuk: I see. And coming back to my previous question, and who funds your activity?
Kathryne Bomberger: Even though we’re an international or intergovernmental organization based on a treaty, we are voluntarily funded. So we are seeking funds. We have received funds in the context of Ukraine, which we’re extremely grateful for from the European Union, from Germany, from the United States, from Canada, and we’re hoping to receive additional support from Norway and other governments.
Oleh Klymchuk: Kathryne, is it true that your forensic experts took part in an identifying of MH17 flight casualties in 2014? Was that experience a new one for your laboratory?
Kathryne Bomberger: No. In fact, on several occasions before the invasion, we have come to Ukraine. I myself came in 2014 at the invitation of the Prosecutor’s Office to address the first mass graves found in Slovyansk. Then through a standing agreement we have with Interpol, we deploy following disasters. So we had a team that deployed to address the MH17 horror, and we deployed a team there. And then the Netherlands Forensic Institute was working 24/7 to try to identify the victims because the plane blew the bodies apart, which meant it exceeded the capability, again, of one government to do such a high number of cases.
And this is a passenger plane, as opposed to 30,000 people missing from a war. So we also helped the Dutch forensic institute in doing DNA testing of mortal remains. But this is a legacy we have from the Western Balkans, where we were the first organization to apply advanced technologies, including DNA-based identifications of human beings on a large scale. And that is what we want to ensure that Ukraine does, which I’m very happy to explain because it’s a little bit complicated.
Oleh Klymchuk: So in 2022, your mandate didn’t cover Ukraine?
Kathryne Bomberger: We were invited by the prosecutor’s office, and we would have gladly helped at that time. But we didn’t get the funding to be able to do so. And I came back in 2019 to sign an agreement with the Commission on Missing Persons at that time, which has since been abolished, and we still didn’t get funding. But I always wonder what we could have done if we’d been here earlier, but such is life. We’re here now.
You may also read: Indictment Against Putin Will Be Amended, Top International Lawyer Says
Oleh Klymchuk: Your current visit to Ukraine, whose initiative was it to come here? Was it the ICMP’s initiative, or you’re here on some invitation?
Kathryne Bomberger: We were invited following the invasion by the office of the prosecutor to assist Ukraine in conducting these investigations. So we’ve been operating in Ukraine for over a year.
Oleh Klymchuk: Please tell us, Kathryne, what do you want to achieve during this visit to Ukraine, or probably you have achieved already?
Kathryne Bomberger: It’s been quite a while that we’ve been working together with quite a number of institutions and ministries here in Ukraine, working on establishing these very important cooperation agreements. So establishing two agreements or signing two agreements, one with the Ministry of Justice, the other with the Ministry of Health, was a very important milestone for the organization. We still hope to sign agreements with the Ministry of Foreign Affairs, with the Ministry of Interior, with the SBU, with the Prosecutor’s Office. In other words, there are quite a number of ministries, and this is not unusual. It’s very typical within a state because the issue is cross-cutting that play a role in the missing person’s issue. So we hope to sign agreements with all the relevant institutions.
Oleh Klymchuk: We know the commission possesses a DNA laboratory in The Hague. How many cases can this laboratory handle simultaneously? And can you process the DNA samples taken from Ukraine after having signed the memorandums with Ukrainian institutions you have mentioned?
Kathryne Bomberger: Prior to the signing, we have been working with the Ukrainian institutions on a case-by-case basis through court orders because it’s very important that we respect the laws of Ukraine. So through court orders, we can receive postmortem samples. And through the voluntary participation and consent of families of the missing, we can collect reference samples for DNA testing. But we fully expect that once we sign these agreements, the process will definitely be expedited. regarding your question about our laboratory. At the height of our activities, we were doing 15,000 cases a year, which is very large. And now that we’ve moved everything to the Netherlands, we’re in the process of upgrading our laboratory capabilities so that we can fully be a partner for Ukraine.
Oleh Klymchuk: And by your estimation, Ukraine has about 30,000 missing persons, right? And how many tests are expected to be taken from the relatives regarding this?
Kathryne Bomberger: The number of 30,000 or 28,000, just about 30,000, comes from the Ministry of Interior, and let’s just go with that number, because you know, in understanding what is an accurate number, you know, if that includes, for example, the deported children, so all of these things need to be clearly understood. But, let’s say it’s 30,000 which, you know, we believe is what the Ministry of Interior has, that’s a good starting point. Now, when you’re using DNA testing, the way ICMP used it for example in the Western Balkans, which we highly keep recommending to Ukraine that they do, you need to have a DNA-led process. So, it’s not just using DNA, which is no longer controversial. I mean, in today’s world in 2023, I think people wouldn’t bat an eye but when we started using it in 1999, it was hugely controversial, in fact nobody had ever used it before. So, instead of using any other method of identification, you start with DNA. So, DNA becomes the frontline or the first line of identification. So you’re using science. And the way you use science is through kinship matching.
You’re matching the relatives of the missing person to each other. So, if there’s a child for example that has been separated from their parents they may no longer look the same, or there may be no documentation to prove that they are in fact their child. So, DNA reference samples collected from the parents and from the child, for example can be used to reunite them, to show the genetic relationship. Or, DNA can be used in cases where the missing person is deceased but the mortal remains are unidentified.
You may also read: Even during the all-out war, reforms in Ukraine are continuing — Michael Druckman
Kathryne Bomberger: What you need to do is to collect DNA broadly, it’s a population-based approach, and this is a very democratic approach, which means you need to collect data from every single family: rich, poor, no matter what the economic background, national background, religious background, any factor, they should be invited to provide a genetic reference sample and data through their own choice, voluntarily, in line with data protection, GDPR rules, but it would be a broad net. So, if the number is 30,000, you would need to collect data from a minimum of ninety thousand relatives. Why? Because we’re using classic, short tandem repeat testing, which means you need to find relatives within the direct hereditary line, and you need to find at least two to three living relatives that you can match this person to for example.
Oleh Klymchuk: And if there are no relatives?
Kathryne Bomberger: If there are no relatives, if you have a database where you have known individuals, you can do bone-to-bone testing. But that can also be problematic if there is nobody. But at least if you have a good database you can begin to see where the gaps are. So, one thing that we’re worried about, and certainly this happened in the Balkans, is that cases were closed without DNA, but our understanding is that the majority of cases are being closed using DNA but sometimes to close a presumptive case. So what we’re saying is start with DNA. Blind it. The laboratory should not know what cases they’re working on so that all identifications are based on science. Once you have a scientific identification, through proper chain of evidence, you can link the identity of the missing person to the crime scene and then hopefully, with proper chain of custody, also determine cause and manner of death, and all of this becomes important. Because families of the missing have rights to justice and this now becomes powerful evidence for criminal trial purposes.
Oleh Klymchuk: Kathryne, what organisation is responsible for storage of DNA samples and test results taken from Ukrainians?
Kathryne Bomberger: Several types of data, okay? First, you have the families of the missing, who are the living, let’s say the survivors of these atrocities who have to provide reference samples and other data. They need to provide information about the missing person. What did they look like? What were they wearing? When did they go missing? Where did they go missing? Who was there when they went missing? Who was the possible perpetrator? Were there other acts of atrocities that took place in the context of the disappearance? So, all of that data is very important. Secondly, to use DNA while you’re collecting data about the missing person, you should take a reference sample from that family member. That data belongs to the family. Under GDPR, just to put it very simply, that data belongs to the family. So, if a family voluntarily provides us with this data, we are simply holding the data on behalf of the family to use that data for the purpose stipulated by the family. So, for example, the family will say, I just want to identify my missing loved one, but the family has the option, and we provide that option to also say, I want to provide my data with a third party for example, the Ministry of Interior, to facilitate the investigation. Or, in the case of the former Yugoslavia, to the International Criminal Tribunal for the former Yugolslavia for the purposes of investigation.
Oleh Klymchuk: So the rights of the relatives of the missing persons are safeguarded in all instances, aren’t they?
Kathryne Bomberger: So these are choices in a modern world, in terms of the proper rule of law, and ensuring GDPR, where the family of the missing has the choice. They are the survivors. And in the case of Ukraine, and most conflicts, they’re usually women, because the majority of those missing are combatants and usually men. So, it’s primarily women, children, and you have very strong women in Ukraine, I’m happy to say, very strong civil society, strong media, strong families of the missing, and they are, from what I can see, because we also work with them and engage with them, very strong. So, they need to know what their rights are and they need to know how to work with the government and international organisations like ours. So we have to respect their human rights, also to justice, truth and reparations, but to the protection of their own data. They’re in the driver’s seat regarding the use of their data. When it comes to the post-mortem sample, let’s say a mass grave or concealed grave or crime scene is exhumed, and bodies are exhumed, the person then is in the custody, let’s say, of the state itself. So, any body at a crime scene is in the custody of the state, you know, at a mortuary that belongs, for example, potentially to the Ministry of Health under the forensic bureau. So when we take a reference sample, that’s done bilaterally with the permission of the family. When you take a post-mortem sample, that’s done with the state. And here you need a court order, and thus, also the agreements with state institutions and ministries.
Oleh Klymchuk: If a family shares the DNA data, there is a guarantee that these samples will not get in the wrong hands?
Kathryne Bomberger: That is a requirement under the law. Because there is an FTA card, so first you collect the blood sample or saliva swab, with a barcode. In our case, once it goes into our laboratory, it’s completely anonymized. The laboratory scientists have no idea who it belongs to and it’s completely anonymized, then you obtain a profile from the genetic reference sample provided by a family. Now, if at any point the family wants their data back, the data belongs to them. Now, if a third-party, for example in the case of Ukraine, we have an agreement with the Ministry of Interior already, to collect data from families of the missing residing outside of Ukraine among the refugee populations living in Poland or Germany, etc. In these cases, we have an agreement, whereby we also ask the family, would you be willing to share your data with the Ministry of Interior to augment the process of investigation. So but that is their choice. And in most of these cases, the families so far have said yes. But it’s- what is important in data protection parlance to put it in, you know, simple terms for the families is, the family- the data belongs to them and to no one else. So, if we share that data with anyone we have to go back and get their permission.
You may also listen and read: Dr Marta Dyczok: «This horrible war has had one positive side effect»
Oleh Klymchuk: Kathryne, you’ve met different people from Ukraine and ministers already, and your workers and volunteers. In your opinion, how would you estimate the general level of efficiency and cooperation of all these organisations dealing with the missing persons issue?
Kathryne Bomberger: It’s very impressive, I have to say, and it’s getting better, to be honest, it’s really getting better. So, I think there’s a very keen understanding of what they’re up against, there’s a very keen desire to do the right thing, to be transparent, to be credible in their work, to meet the challenges that are ahead of them, to also include survivors and families of the missing and Ukrainian civil society, and by the same token, I think Ukrainian civil society including the media as far as I can tell seems to be very active, very strong and when you have those components, if you have a government that has the political will and you have civil society that is strong and active and not marginalised, you know and that’s not the case, because I’ve seen many places where that is not the case. I mean, Syria is a disaster, a hundred and fifty thousand people missing and there’s no political will on the part of the Assad regime to do anything.
So, I think these ingredients and the fact that the international community is very involved I think also, the fact that, you know, the rule of law, hopefully, for a period of time, seems to have raised its lovely head again, that we’re all, you know, back on track here because there was a period of time, as you know, where we were a bit all worried about where the world was going. So I hope these things- this momentum is maintained. You know, one worrying part is the world’s attention is now not here at the moment and that’s worrying, you know, the presidential elections in the United States are worrying, so as I keep telling our Ukrainian counterparts is, «you have to hurry up.» I mean, you never know what’s going to happen next but you’ve got the support now, move. So all of the, you know, collecting ninety thousand reference samples, doing what you can now while the support is here is essential.
You may also read or listen on Hromadske Radio: «Everything I see now is inspiration» — Melinda Simmons
Transcribed by Caitilín O’Hare
Please, listen to the full interview, turning on the audio player at the top of the pag