INTERNATIONAL STANDARDS: FIGHTING AGAINST DISAPPEARANCES

Atty. Cecilia Jimenez
Association for the Prevention of Torture (APT)


 

A global struggle: Atty. Cecilia Jimenez gives a lecture on international human rights standards.

Many years ago, when I was merely a law student and activist in Manila, a woman told me her story. It was a story that many of you already know—it is a story of a woman whose son was taken away in the dead of the night, amidst the anguish of the family. Since the disappearance, she has never heard of any news about her loved one, and her anguish continues to this day. After that first encounter with a relative of a disappeared, I have heard many of these stories again and again, and have shared the continuing anguish with the families. Over the years, I have come to realize that the atrocity of enforced or involuntary disappearances is unfortunately not exclusive to a few pockets in the world. Disappearance is actually a worldwide problem that continuously plagues many countries and many populations, including Asia where the incidence of disappearances is even on the rise.



Disappearance is, indeed an international phenomenon. While disappearance is tackled most effectively at the national level, the fight against disappearances is nevertheless also an international effort that requires solidarity among peoples and organizations, across borders. Indeed, our common efforts are universal values. These values are embedded in the standards found in the Declaration of Human Rights and other instruments. Our use of these international standards is reflective of the reality of disappearances: there is the same anguish experienced by the Filipino woman I spoke of who lost her son during an urban poor raid, as that of the Chinese mother whose son disappeared after the Tiannanmen Square massacre.



In the fight against impunity for human rights violations, this is where the use of international standards is most important—as an expression of common and universal values, as a tool for international solidarity and sensitization, as an approach to support local and national work, and as a means to help achieve the resolution of human rights violations.



International Standard-Setting: An Inter-Governmental Process



It must be clear from the very start that international standards and the instruments, as they have come to evolve, are the result of the work mainly of governments and governmental institutions. Even the definition that we use with regard to disappearances, as embodied in the UN Declaration on the Protection of All Persons from Enforced or Involuntary Disappearance, has been recognized in an inter-governmental process. The Declaration, as we know, has been adopted by the UN General Assembly in 1992; the UN General Assembly is composed of States.



The situation is true with regard to the Rome Statute on the International Criminal Court as well as the Inter-American Convention on Forced Disappearance of Persons, both of which were ably presented yesterday by our friends from the Philippines and Latin America.
 


Having said that, I would like to affirm, however, that international standards evolve in the attempt of the international community of States to respond to pressure, both locally and internationally, to set up the rule of law. These pressures are exerted by civil society, sometimes through NGOs, whose main objective is the promotion and the implementation of human rights. Thus, although it is mainly States who are involved in the process of international standard-setting, and a good number of these States are blatant violators of human rights, civil society with NGOs try to extend the confines of an essentially governmental process by submitting expert opinions, presenting positions, mobilizing national and international networks and public opinion—in short, by organizing and mobilizing.



In the end, most of the international and regional standards of human rights are not the ideal international standards that we would have if we were to draft them ourselves. However, in many standard-setting exercises on human rights, human rights principles have been maintained and even expanded, thanks to NGOs, human rights experts and “friendly” governments. Thus, even though these international standards are not perfect, we should be able to use these human rights principles to support us in our work.



It is for this reason that many States, especially those which blatantly violate human rights, are likewise not completely happy with human rights international standards. Many of the Asian States, for example would accuse these international standards as being “western” and would refuse to recognize or ratify them. Again, it is up to human rights groups and NGOs to be able to work for the governmental recognition and, where applicable, ratification of these international instruments without reservations. And in the end, it is the implementation of these international standards on human rights, as part of the law of the land, which would remain to be the principal challenge for human rights groups.



Example: World Conference on Human Rights 1993 when Asian States tried to attack the universality of and indivisibility of human rights and Asian NGOs and groups resisted and lobbied for the inclusion of the principle of universality and indivisibility in the Vienna Declaration and Programme of Action on Human Rights.



International Standards and the Question of Disappearances



The question of involuntary disappearances has been on the agenda of the United Nations for many, many years now. Every year since 1978, the issue is dealt with through deliberations in the UN Commission on Human Rights and in the Third Committee of the General Assembly. There presently exists a UN Working Group on Enforced or Involuntary Disappearance at the Commission on Human Rights which, as you know, is an international mechanism that can receive communications even from persons living in States which have not ratified any of the relevant international instruments.



The treatment of international disappearance is well-covered by existing international instruments. Disappearance is universally condemned and prohibited, directly or indirectly, by many international instruments. The Rome Statute and the Inter-American Convention on Forced Disappearance of Persons provide disappearance as a distinct form of human rights violation. However, the Rome Statute is not yet in force and will probably take some more time. The Inter-American Convention, although theoretically open to accession by States outside from Latin America, remains Latin American. Presently, there is a draft Convention on the Protection of All Persons from Enforced or Involuntary Disappearances which is not yet a treaty and will need to go through the inter-governmental process. (I will go back to the draft Convention later.)



Disappearance as a Violation of Human Rights in Existing Treaty Law



With the exception of those cited above, the international crime of disappearance is presently treated as a violation of many rights, taken individually or collectively, which are provided by other international treaties.



Disappearance is a clear violation of many fundamental rights, many of them jus cogens. Foremost of these rights violated is the right not to be subjected to torture. Indeed, the UN Declaration on the Protection of All Persons from Enforced Disappearances, while not treaty law, specifically states that enforced disappearance constitutes torture.



First of all, the violation of the prohibition against torture is particularly relevant to the person disappeared, who is immediately put in a situation where the risk of torture increases a hundred-fold. The person disappeared is placed outside the protection of the law. This is especially relevant also since the State could have a treaty obligation to prevent the occurrence of torture.



Secondly, the violation of the right not to be subjected to torture is also relevant to the relatives who are left in a continuing state of uncertainty and anguish at the fate of their loved ones. Sir Nigel Rodley, the UN Special Rapporteur on Torture, concluded that “there is a trend towards recognising that to make some disappear is a form of prohibited torture or ill-treatment, clearly as regards the relatives of the disappeared person…”



Under existing treaty law, this interpretation is particularly interesting where there is some jurisprudence to consider. Many of the cases pronounce disappearance as violative of the right to life, the prohibition of torture, the right to liberty and security of person, the right to a fair trial and the right to recognition before the law, among others.



1. The International Covenant of Civil and Political Rights



Many of the provisions in the ICCPR are violated in a disappearance. These are, among others, the following: the right to life (article 6), prohibition of torture (article 7), right to liberty and security (article 9), right of detained persons to be treated with humanity and respect (article 10), right to a fair trial (article 14), right to recognition (article 16), right to equal protection of the law (article 26).



The Human Rights Committee, the Covenant’s treaty body which also receives individual communications, considered the case of Quinteros and concluded that:



The Committee understands the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty of her fate and whereabouts. The author (of the communication) has the right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the Covenant suffered by her daughter in particular article 7 (prohibiting torture).



2. The European Convention for the Protection of Human Rights and Fundamental Freedoms



The European Court of Human Rights has likewise pronounced itself that the subject of disappearance constitutes a violation of the prohibition of torture, as provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court clearly decided in the case of Kurt vs. Turkey that disappearance constitutes a violation of the rights of the family members not to be subjected to torture or ill-treatment, again because of the waiting in a context of uncertainty on the whereabouts of the disappeared, brought about by the fact that the State did not respond to the inquiries. What is further more interesting in this particular case is that the Court based its ruling on no other fact except that the woman proved she was connected, as the mother, to the disappeared son; the Court did not require other proof such a psychological suffering. Thus in this case, the Court decided that there was a violation of the right to freedom and security (article 5) in respect of the disappeared, and of the prohibition of torture and ill-treatment (article 3) in respect of the relative.



3. The Inter-American Convention on Human Rights



One of the primary examples coming from the Inter-American system is the famous case of Velasquez Rodriguez vs. Honduras decided by the Inter-American Court of Human Rights. The Court held the government responsible for the disappearance of Velasquez. It therefore found Honduras in violation of certain rights contained in the Inter-American Convention on Human Rights (articles 1.1, 4, 5 and 7 which are the rights to life, liberty, due process and humane treatment and the requirements that governments affirmatively guarantee these rights). What is most interesting in this case is that the Court established an evidentiary standard whereby government responsibility for the disappearance of a specific individual is presumed if the government is engaged in a systematic practice of disappearances and the case at hand is connected with this practice. Moreover, the government’s burden is further increased if it has failed to investigate or provide an effective remedy for a disappearance; in this case, it can held liable even if the government cannot be show to have undertaken the disappearances.



4. The UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment



The Convention against Torture adopts article 1 a strict a definition of torture which, nevertheless, could encompass the crime of disappearance.



For the moment, the Committee against Torture, in its exercise of its supervisory function for individual communications, has not yet pronounced itself on a case of disappearance as amounting to torture. However, in its recent session this November in Geneva, it has found itself faced with the problem of disappearance as a violation of the prohibition against torture.



Parallel to the Committee’s consideration of the State Party report of Guatemala, Amnesty International submitted to the Committee a briefing paper on the ongoing suffering of the families of thousands of disappeared persons in Guatemala. In its submission, Amnesty stated this suffering, which amounts torture and ill-treatment under article 1, was exacerbated by the failure of the government to adequately conduct investigations. Give compensation and bring the responsible to justice. Thus, Amnesty concluded that Guatemala is in violation of its obligations under articles 11 (systematic review of rules, instructions, methods and practices, and practices in relation to custody and treatment), 12 (requirement for a prompt and impartial investigation), 13 (right to complain and prompt and impartial examination) and 14 (right to redress).



In its Concluding Observations on Guatemala , the Committee in reference to the issue of disappearances, enunciated:



“IV. Motivos de Preocupacion:
7. (e) La falta de una comision independient dotada de las mas amplias facultades recursos que investgue, caso a caso, las circunstancias de los secuestros de las personas desaparacidas y la ubicacion de sus restos. La incertidumbre acera del conocimiento de esas circunstancias constituye motivo de grave y permanente sufrimiento para sus finiliares.


….


El Comite recomienda:


10. (e) El establecimiento de una Comision independiente para que investigue la circunstancias de lost secuestros de las personas desaparecidas, la suerte corrida por ellas y la ubicacion de sus restos. El Estado tiene el deber de agotar los esfuerzos para obtener la verdad de lo ocurrido en estos casos y satisfacer asi el legitimo derecho de sus familiares, reparar el dano causado y juzgar a los reponsables.”



Roughly and unofficially translated:



“IV. Subjects of Concern:
7 (e) The non-existence of an independent commission with extensive means and powers of case by case investigation of the circumstances of the arrests of the disappeared persons to find out about their remains and whereabouts. The uncertainty about the knowledge of the circumstances constitutes a grave and permanent reason for the suffering of their families.


….


The Committee recommends:
10 (e) The establishment of an independent commission charged with the investigation of the circumstances of the arrests of the disappeared persons and to know about their remains and whereabouts. The State has the duty to put in place al possible means at its disposal in order to obtain the truth about what has happened. And to satisfy in this way the legitimate right of the families to receive reparation for the damage caused and to bring to justice the persons responsible for these acts.”



With these observations, Committee against Torture seems to have started to bring its interpretation into line with other existing international case-law and opinions, by directly dealing with disappearance within the ambit of its interpretation of the application of the Convention. It would be interesting to note how this development would be in the future used by groups and NGOs concerned with the question of disappearance and how the Committee would further develop the subject further. It would be also interesting how the Committee, in the exercise of its supervisory function in dealing with communications, would handle a case of disappearance as a ground for non-refoulment, if such a case could be made.
 


One last word concerning the Convention against Torture. We all know that the Pinochet ruling was based on the application, albeit limited, of the Convention’s provisions on universal jurisdiction . I would like to put forward that it might be possible to use the Convention Against Torture, as in the case of Pinochet and subsequent cases, in universal jurisdiction cases involving disappearance.
 


5. The Geneva Conventions
 

 

Atty. Cecilia Jimenez shares her experience on international mechanisms...

Disappearance is considered to be violative of many of the provisions of the Geneva Conventions of 1949 and Protocol I (dealing with international armed conflicts) and article 3 common to the Geneva Convention and Protocol II (dealing with non-international conflicts). Basically, these international treaties set forth detailed rules of behavior to protect actual or potential victims of war—wounded, sick or shipwrecked, members of the armed forces of the other side; prisoners of war; and civilians. A disappearance would constitute a violation of many rights, most of them grave breaches. If these provisions do not suffice, disappearances would be prohibited by Article 1, paragraph 2 of Additional Protocol 1:



“In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.”



In some interpretations, some specialists in international law agree that the refusal of information about a disappeared or dead person constitutes a form of mental torture and is not compatible with the obligation that those who do not participate in hostilities should be treated humanely in all circumstances, as stated by the Geneva Conventions.



Last but not the least, the International Committee of the Red Cross, which monitors the implementation of the Geneva Conventions, has developed as part of its work visiting authorities to place of detention. While this authority to visit is concluded with the agreement of the Government concerned, an agreement would necessarily include the right to visit any place or possible place of detention, and the right to interview detainees in private. In the conduct of the ICRC’s visits and its dialogue with the Government, the ICRC has been able to help locate some of the disappeared.



6.International Covenant on Economic, Social and Cultural Rights



In the interest of the indivisibility of human rights, I would like to take a brief note of this treaty which deals with essentially non-civil and political rights as we know them. Until now, we have been looking at the question of disappearance from the angel of civil and political rights. However, it is my humble contention that the commission of disappearance, being what it is in terms of comprehensiveness, intensity and scope, could also implicate the violation of economic, social and cultural rights such as the right to work, the right of a family to be accorded protection, the right of children (which also implicates the Convention on the Rights of a Child), etc. The Committee on Economic, Social and Cultural Rights, has not dealt with the disappearance as a violation of its provisions. The Covenant’s Optional Protocol which would enable the Committee to receive individual communications is currently still a draft. Thus, this area of legal interpretation remain untrodden and would probably be useful to advocacy work of the groups working o disappearance.



Disappearance as a Human Rights Violation under Draft Treaty-Law



There are currently two international standard-setting exercises which encompass the question of disappearance.



1. The Draft Optional Protocol to the UN Convention against Torture

The idea behind this draft treaty is a simple but daunting one—In order to prevent torture and crimes connected with torture, visits by a neutral mechanism shall be undertaken at any place and at ant time. The authority of this international mechanism to visit the territory of a State Party shall encompass “any place” where persons deprived of liberty are held or may be held. The latter term would necessarily include suspected places where unaccounted for or disappeared persons may be held.



Since 1992, the UN Commission on Human Rights has an operational Working Group which has finished the first reading. In 1998, the Working Group, in the course of its second reading, has not progressed at all because of the opposition of a group of countries which are trying to limit the scope of the authority of the visiting mechanism. The NGOs involved in the process, including my organization which is very active in the negotiations, continue to work for the maintenance of the principle of “any time, any place” in order that the preventive character of the mechanism is maintained.



At the moment, the negotiations are at an impasse and the next Working Group session is scheduled in February 2001. This situation of this impasse is, in my opinion because of our experience in standard-setting, a reflection of the detrimental climate within which international standard-setting is presently being undertaken. Nevertheless, our work continues to try to ensure the non-derogation of existing standards (such as those in the Geneva Conventions) and the expansion of new rights.



2. The Draft International Convention on the Protection of All Persons from Enforced Disappearances (hereafter draft Convention)
 


The need for a new treaty



The need for an international instrument which deals exclusively with disappearance was felt because of the specific nature of forced disappearance. As we know, force disappearance constitutes a multiple violation of human rights, it is a violation that extends in time (both for the disappeared and for the family) and it constitutes a grave offense to human dignity. Moreover, although majority of the rights violated by a forced disappearance are protected by other instruments (as discussed above), there is an absence of a universally applicable treaty clearly establishing State obligations with regard to prevention, investigation, suppression and international cooperation, and guaranteeing the right to redress (i.e. the Declaration is not legally binding and the Inter-American Convention, though open to accession to non-members of the Organization of American States, is practically considered a regional treaty).
 


For example, the ICCPR does not establish specific obligations of prevention, investigation, suppression and international cooperation. As regards the Rome Statute, it permits punishment of enforced disappearance only when this is committed “as part of a generalized or systematic attack against the civilian population” or when it involves a crime against humanity. Thus, the Rome Statute is insufficient as it does not involve a crime against humanity or when practiced outside the context of a ‘generalized or systematic attack against the civilian population.” Like the ICCPR, the Rome Statute does not establish obligations for suppression of disappearance at the domestic level.



What would, therefore, a draft Convention add? The following added value would derive from the adoption of a Convention on enforced disappearance :



1. the existence of a treaty addressing enforced disappearance in all its various aspects and in a comprehensive manner;


2. the obligations with respect to prevention, investigation and suppression of enforced disappearance are established with greater clarity and in a more practical manner in the draft Convention than in the International Convention, thus extending the threshold of protection with regard to disappearance;


3. the inclusion of provisions with respect to international cooperation (articles 4, 8);


4. provisions concerning appropriation of children born during captivity of their disappeared mother and the adoption of these children (art. 18);


5. the broad definition of the victim and the right to reparation established in the draft Convention (art. 24); and


6. establishment of adequate international protection mechanisms in the face of the extreme gravity and specificity of forced disappearance, in particular the so-called “international habeas corpus” (art. 13).



Basic legal provisions



1. Definition: Article 1 provides a basic definition of enforced disappearance which are based on two elements: deprivation of liberty and concealment of the fate or whereabouts of the disappeared. The definition of the perpetrator remain essentially State-based, although there is a cross-reference to national law in case of non-State agents. Article 2 relates to other relatd acts (e.g. instigation, abetment, etc.).


2. Suppression of the offense of enforced disappearance: Article 5, 6, 7, 8, 12 and 13 all provides for obligations for the suppression of the offense of disappearance. These include the obligation to establish disappearance as a crime in its own rights, to establish rules concerning the competence of national tribunals and to engage in international cooperation and mutual assistance.


3. Safeguards against impunity: Articles 9, 10, 14 and 19 foresee the State’ obligation to fight against impunity such as the prohibition to grant amnesties, to grant asylum or refuge to perpetrators, to invoking the principle of due obedience, etc.


4. Measures for prevention and protection: Articles 11, 20, 21 and 22 provide for obligations which would enable the State to prevent disappearance and to protect the victims of the violations. These include: obligation to hold persons deprived of liberty solely in officially recognized places of detention; provisions guaranteeing the legality of the deprivation of liberty; guarantees for prompt, exhaustive and impartial investigation and other legal recourse, non-refoulment, etc.


5. Rights of victims: Articles 10, 11 and 24 provide for the right to reparation and its modalities; establish a broad definition of the victim to include the disappeared person, close relatives, any dependent and any one who ahs suffered harm through intervening to prevent the disappearance or to shed light on the fate of the disappeared; right to truth; and right of the victim to a legal standing.


6. Children: Article 18 covers the phenomenon of the abduction of children of disappeared children and their adoption.


7. Mechanism: The draft Convention provides for a mechanism, to be called the Committee against Forced Disappearance that will be both monitoring and supervisory. Aside from it essential function in the periodic examination of State Party report, the body will also have the capacity to visit the territory of the Sate Party to gather information in relation to the report and to request additional information with regard to the existence or gravity of disappearance in the State Party (article 27, 28). The body will also be able to receive both inter-State and individual communications (articles 29, 30). Lastly, and which is the most innovative of them all, is the capacity of the body to engage in an “international habeas corpus” procedure (article 31) by means of a emergency procedure aimed at looking and locating disappeared persons.


8. Reservations: While the treaty basically permits reservations, any reservations are however, expressly prohibited (article 36.1) with regard to the substantive provisions (articles 1 to 24), to the mechanism of international habeas corpus (article 31) and to “the effect of which would inhibit the operation of any of the bodies established by this Convention.”



Background in the elaboration and prospects

 


The initiative for a draft Convention started in 1981. With the adoption of the Declaration in 1992 and of thr Inter-American Convention in 1994, it was the deemed opportune to begin the drafting of the draft Convention. This process was started in 1996 by the UN Sub-Commission, which process involved many experts and human rights NGOs and groups working on the issue of disappearance. The final draft was submitted by the expert, Mr. Louis Joinet, to the UN Commission on Human Rights in 1999. The draft Convention is presently in the hands of the UN Commission on Human Rights, which will look into the question of its future in its 57th session in March and April 2001.



Presently, the prospects look bleak. We must remember first of all that the draft Convention was drafted by experts, NGOs and relatives. After its submission to the UN Commission on Human Rights, the draft Convention will necessarily undergo an inter-governmental process so long as it remains in the UN. Because the draft Convention contains many good innovative ideas in the resolution, prevention and suppression of disappearance, many States are presently opposed to it. On the level of substance, therefore, it is inevitable that in the process of the UN Commission’s examination of the draft, there will be changes. As NGOs, in whatever way the draft Convention will be further elaborated, we must be able to attempt to maintain the major principles contained in the draft Convention which enable the draft Convention to have the “added value” and to continue to be relevant to the realities on the ground. In other words, we must fight it out.
 


With regard to the process, there would be several options pen on how the instrument will be examined and adopted by the UN. The first option of the UN Commission on Human Rights and then the UN General Assembly adopting the draft as it is, id not possible—there is simply no group of countries big and strong enough to enable the international community of States to adopt it by consensus.



Another option would be to go through the classical method of international standard-setting which would be the setting up of a Working Group which would be essentially governmental, with NGO participation in the deliberations but not in decision-making. The basic problem that exists is that there is an increasing polarization of one group of States versus another group of States, which are continuously competing on human rights principles. One of these groups consistently and predictably maintain the principle of State sovereignty in all the negotiations; the power of this group of States is growing more and more as they get more organized, while the “non-problematic” group of States become more willing to compromise and less cohesive in its positions. Therefore, any attempt at the initiation of a new international standard-setting exercise will have to be proceeded with caution and with a clear NGO strategy on how to approach to various negotiation problems.



It does not mean that we have to let go of the draft Convention. The draft Convention is currently the only concrete, and universal, expression on how we could tackle the international crime of disappearance locally and through international cooperation. It is therefore very important to maintain the draft Convention as a focus of international lobby and campaign work, and as an information tool in our organizing and educative efforts.



A Last Remark



With the exposition made yesterday and today concerning international standards in the fight against disappearances, I would like to reiterate one thing—international standards on human rights, like any piece of legislation, are meant to be liberating and are meant to be restorative. Like any creation of human kind, it is never perfect. What we as human rights lawyers and activists should always strive to do is to know how to use these standards as tools in our work for liberation, for restorative justice. In the use of international law and standards on human rights, this means three things: