A Primer on the
United Nations Draft Convention on the Protection of All Persons from
Enforced or Involuntary Disappearances
(Prepared by the
Asian Federation Against Involuntary Disappearances)
Contents:
I. What is
Involuntary Disappearance?
II. What is the United
Nations Declaration on the Protection of All Persons from Enforced
Disappearance?
III. What is the United
Nations Draft Convention on the Protection of All Persons from Enforced
Disappearance?
IV. What does the
recently approved convention mainly state about the issue of
disappearance?
V. What is the
difference between a Convention and an Optional Protocol?
VI. Why is there a
need for a Convention?
VII. What is the
Convention’s importance for the Peoples of Asia?
VIII. Why is the
enactment of the Convention important?
IX. What is the
practical importance of the Convention to the victims and their
families?
I. What is
Involuntary Disappearance?
Based on the
recently approved Final Project of the International Convention for the
Protection of All Persons against Enforced Disappearances, enforced
disappearance is considered to be the arrest, detention, abduction or
any other form of deprivation of liberty committed by agents of the
State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by the refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside
the protection of the law.
This practice was
first used by the Nazi to repress the Jews at the height of World War
II. It was subsequently copied by the military and dictatorial regimes
in Asia and
Latin America. At present, Asia
is the continent with the highest reported number of enforced
disappearances.
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II. What is the United
Nations Declaration on the Protection of All Persons from Enforced
Disappearance?
This is a
non-binding document adopted by the UN General Assembly on 18 December 1992
under the Resolution 47/133. This declaration provides the principles
that shall guide and govern the said body’s member-states, namely:
-
Respect for
human rights;
-
Repudiation of
the practice of enforced or involuntary disappearance under all
circumstances;
-
Need for each
State to take effective legislative, administrative, judicial or other
measures to prevent and terminate acts of enforced disappearance in
any territory under its jurisdiction;
-
Each State shall
make enforced disappearance an autonomous offense under its criminal
law;
-
No order of any
public authority, civilian, military or other, may be invoked to
justify an enforced disappearance;
-
Enforced
disappearance is a continuing offense and therefore, there should not
be statutes of limitation. When enforced disappearances are committed
as part of a widespread and systematic practice (thus, considered a
crime against humanity), they are imprescriptible;
-
Persons who have
or are alleged to have committed an enforced disappearance shall not
benefit from any special amnesty law or similar measures; and
-
Only civil
tribunals shall be competent in cases of enforced disappearances.
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III. What is the United
Nations Draft Convention on the Protection of All Persons from Enforced
Disappearance?
This is the
proposed universally binding instrument intended to address the issue of
involuntary disappearance. Once adopted by the United Nations General
Assembly and ratified by the United Nations member-states, it will be
legally binding among all States that have ratified it. It is very much
different from a Declaration which is a mere stipulation and/or
enumeration of principles.
The necessary
steps to be taken before this instrument can enter into force are:
-
Adoption of a
resolution of the new Council of Human Rights (that had its first
session this June 2006);
-
Approval of the
text by the General Assembly (scheduled on November 2006) and opening
to ratification;
-
Ratification by
States; and
-
The Convention
enters into force upon the ratification of 20 States.
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IV. What does the
recently approved convention mainly state about the issue of
disappearance?
The convention,
whose final text was approved in September 2005 by the then Inter-sessional
Open-ended Working Group to Elaborate a Legally-binding Normative
Instrument for the Protection of All Persons from Enforced or
Involuntary Disappearances states that no one shall be subjected to
enforced disappearance under any circumstances may it be a state of war
or a threat of war, internal political stability or any other public
emergency. It strongly holds that enforced disappearance constitutes an
offense under its criminal law as it considers this widespread or
systemic practice a crime against humanity.
Furthermore, the
Convention provides for the right of the relatives of the disappeared
person and of the society as a whole to know the truth on the fate and
whereabouts of the disappeared and on the progress and results of the
investigation.
According to the
new instrument, each State Party shall codify enforced disappearance as
an autonomous offense under its criminal law.
State Parties to
the new Convention shall cooperate in searching for, locating and
releasing disappeared persons and, in the event of death, in exhuming
and identifying them and returning their remains. Each State Party
shall take appropriate measures in this sense.
Moreover, the
convention contains the provision that emphasizes the right to form and
participate freely in organizations and associations supporting the
cause of the disappeared.
Finally, the
Convention provides that:
V. What is the
difference between a Convention and an Optional Protocol?
There is
technically no difference between the two since they are both legally
binding among the States that have ratified them. However, a Convention
is more preferable because of its strong symbolic value. It conveys a
more powerful message to the international community expressing the
gravity of the matter, extensive global awareness and the willingness of
the member-states to intervene, suppress the practice and prevent the
occurrence of new cases.
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VI. Why is there a
need for a Convention?
At present, the
international bodies tasked to address the issue of enforced or
involuntary disappearance are the following:
-
United Nations
Working Group on Enforced or Involuntary Disappearances (UNWGEID);
-
International
Criminal Court (ICC - only in cases of disappearances happening as
part of a widespread and systematic practice); and
-
Human Rights
Committee (HRC)
These bodies,
however, have their own respective limitations. The UNWGEID, for
instance, lacks any binding power as well as judicial competence. Its
mandate is essentially of humanitarian nature, and is merely tasked to
receive complaints regarding the occurrence of an enforced disappearance
and then recommend measures to be undertaken. As such, the said Working
Group has no power to condemn a State for human rights violations, or to
order serious and thorough investigations or reparations.
On the other hand,
the ICC is not a human rights law instrument but a criminal law treaty
which endorses criminal responsibility of individuals for crimes against
humanity, genocide, and war crimes. It must also be pointed out that
victims and their relatives do not have direct access to the
international tribunal for it is so created so as to condemn
international criminals and not to primarily protect the rights of the
victims.
For its part, the
HRC serves as the monitoring body of the International Covenant for
Civil and Political Rights (ICCPR). However, this is only limited to
the States that have ratified the said agreement and the First
Additional Protocol to the ICCPR. Moreover, this body can only deliver
“views” regarding the cases of human rights violations and are not
binding among the State Parties. Finally, the HRC has, at present, a
huge backlog that is almost paralyzing its action.
One of the most
important achievements of the new International Convention on the
Protection of All Persons from Enforced Disappearance is the
establishment of a new ten-member Committee on Enforced Disappearances.
Once the Convention enters into force, the Committee will be set up and
will carry out the following tasks:
a)
Receive, consider and issue comments, observations and recommendations
on State reports on the measures taken to give effect to
obligations established under the Convention within two years after its
entry into force.
b)
Request a State Party to provide the Committee with information
on the situation of a person reported disappeared (relatives of a
disappeared may submit to the monitoring body requests to search for
their loved one) within a time limit set by the monitoring body itself.
In the light of the response provided by the State Party concerned, the
monitoring body shall transmit a recommendation to the respective State
and inform the person who filed the request regarding the process. The
monitoring body may also request the State to take appropriate actions,
including interim measures, and to report it to its members. Finally,
the monitoring body shall continue its efforts to work with the State
concerned as long as the fate of the person disappeared remains
unresolved.
c)
Request one or more of the members of the monitoring body, (if it is
considered that a visit to the territory of a State Party is
necessary to discharge the mandate) to undertake, upon the agreement of
the State concerned, a visit and report back its findings to the
Committee without delay.
d)
Receive and consider communications from or on behalf of
individuals subject to its jurisdiction who claim to be victims of a
violation of the provisions of the Convention. In this view, a State
Party may at the time of ratification or at any time afterwards, declare
that it recognizes such a competence. (IMPORTANT: If a State does
not accept this competence, the Committee may not receive any individual
communication).
e)
Upon declaration of recognition of competence by the State Parties
concerned, it shall receive and consider communications to the effect
that a State Party claims that another State Party is not
fulfilling its obligations under the Convention.
f)
Urgently bring a matter (when it receives information which
appears to contain well-founded indications that enforced disappearance
is being practised on a widespread or systematic basis in the territory
of a State Party) to the attention of the General Assembly of the
United Nations, through the UN Secretary-General.
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VII. What is the
Convention’s importance for the Peoples of Asia?
Asia, at present,
lacks a regional mechanism to protect, promote and uphold human rights,
be it a Convention, a Commission or a Court. In comparison, Latin
America has the Inter-American Convention on the Involuntary
Disappearances of Persons while Europe
has several human rights instruments such as the Council of Europe, the
European Convention on Human Rights and the European Court of Human
Rights. Moreover, at present, not a single country in Asia
has a national law criminalizing enforced or involuntary disappearances.
Thus, the Convention, if adopted and ratified, will facilitate the
enactment of national legislations criminalizing enforced disappearances
and ensure the implementation of the provisions of the future treaty.
Moreover, in the
recent reports of the United Nations Working Group on Enforced or
Involuntary Disappearances, Asia is the continent which submitted the
highest number of cases, with Nepal on top of
the list. The cases occurred in the past and continue to happen in the
present. With the absence of national, regional and international
mechanisms criminalizing enforced disappearances, the United Nations is
the only venue which the families of the disappeared in the Asian region
can use.
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VIII. Why is the
enactment of the Convention important?
A State that
ratifies the said Convention will be compelled to enact the necessary
legislation to ensure that it fulfills its international obligations.
While it may not have a felt effect in the short-term, it will still be
able to oblige States to act in a more humane manner.
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IX. What is the
practical importance of the Convention to the victims and their
families?
A Convention is a
clear step in the struggle against impunity. It would ensure indictment
of the perpetrators and provide hope to the survivors and the relatives
of the victims.
Indeed, it will be
a crucial factor in lobbying local governments to quickly ratify the
Convention.
In the meantime,
organizations of families of the disappeared shall avail themselves of
existing remedies, in particular:
-
Keep sending
communications to the UNWGEID. It is primarily important to update
the Working Group on any news. If there has already been a case
presented, it is of utmost importance to avoid the application of the
six-month rule (that is: if the UNWGEID sends information to the
source and the source does not respond within six months, the UNWGEID
will drop the case;
-
In case there
are menaces, reprisals or threats, IMMEDIATELY inform the UNGWEID and
ask for its prompt intervention. It is important to periodically
update the Working Group once it has issued provided intervention
measures, in order to establish a fruitful and continuing dialogue;
-
Formulate
general observations for the UNWGEID on the compliance of local
governments with their obligations under the 1992 Declaration; and
-
Submit
complaints to the HRC if the State is a Party to the ICCPR and its
First Optional Protocol.
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