A leap in the global fight against impunity
January 12-23, 2004, Geneva, Switzerland- The beginning of 2004 was marked by
the Asian Federation Against Involuntary Disappearances' (AFAD's) participation
in the second formal session of the Open-Ended Working Group for the Elaboration
of a Draft Legally Binding Normative Instrument for the Protection of All
Persons from Enforced or Involuntary Disappearance. At its 57th session, the
United Nations Commission on Human Rights decided, in its resolution 2001/46 of
April 23, 2001 to draft a treaty on enforced or involuntary disappearance.
The Federation, through the generosity of its Latin American counterpart, FEDEFAM, which shared with AFAD its Consultative Status before the United Nations Economic and Social Council, was once again allowed entry into this huge conglomeration of nations to echo to governments all over the world, the voice of the voiceless desaparecidos of Asia and of their suffering families.
Munir and I represented AFAD on this important occasion and made use of the opportunity to intervene during the sessions. It is significant to note that NGOs can intervene as frequently as they need to, on an equal footing with UN member-states. The role of AFAD and other NGOs working in the field is crucial, indeed in order to complement the very legal and technical discussions of government delegations with concrete experience of organizations of families of the disappeared in the field.
AFAD's participation was made possible through the kind financial support of the French embassy in Manila and the Swiss embassy in Jakarta. The French government, through its Ambassador to Geneva, Mr. Bernard Kessedjian is the Chair-Rapporteur of the said Working Group. The government of Switzerland, well-known as one of the most active governments, has expressed an interest in eventually coming up with an international instrument to combat this crime against humanity.
This second session was attended by thirty-three member-states, which are members of the United Nations Commission on Human Rights. Thirty-seven member-states of the United Nations were present as observers. Observers from the Holy See, the International Committee of the Red Cross and the League of Arab States were present. Also present were eight NGOs in Consultative Status with the Economic and Social Council (ECOSOC).
FEDEFAM, AFAD and Linking Solidarity participated. Our participation confirmed the global phenomenon of enforced or involuntary disappearances. The presence of these three continents had made the voice of the disappeared and their families loud enough to be heard.
The Working Group benefited from the expertise of Mr. Manfred Nowak mandated under resolution 2001/46; Mr. Louis Joinet in his capacity as Chairman of the Sub Commission's Working Group on the Administration of Justice and J. Bayo Adekanye and Stephen Toope, both members of the United Nations Working Group on Enforced or Involuntary Disappearances.
The Drafting Process - A Difficult Task
Mr. Bernard Kessedjian's commitment and optimism to arrive at a consensus amidst diversities of positions of various governments was the force driving the members of the Working Group to eventually reach its direction. He said that “Enforced disappearances violate all human rights and all sorts of humanitarian law. The very existence of the individual and his right has come to an end due to this crime. The person has no right anymore since his very existence and memory has been denied.”
The body discussed about the need for a monitoring body, which is the second part of the Chairperson's paper. This was done prior to the discussion of the main substance of the session. While the necessity of a monitoring body was seen, a number of considerations were presented by various delegations such as possible duplication with existing bodies and financial consideration. FEDEFAM mentioned that while such considerations may be valid, of prime consideration is the importance of saving lives. Thus, the creation of an effective body to prevent disappearances was imperative, it further said.
The two-week session discussed seven main points such as definition, offenses and penalties, protection against impunity, domestic prosecutions, international cooperation, prevention and victims. Below is an attempt to summarize the discussion.
On the definition
The following are three elements regarded as fundamental in the draft definition of the working paper prepared by the Chair: deprivation of liberty in whatever form, refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared persons and placing the person outside the protection of the law.
Divergent views emerged on the issue of deprivation of liberty in whatever form. Many delegations preferred an explicit enumeration of the forms of deprivation of liberty such as “confinement” or the use of arrest, detention, abduction or any other form of deprivation of liberty. Some wanted to qualify that the deprivation of liberty should be “illegal”, but it was readily pointed out by others that there are legal deprivations of liberty, which also cause enforced or involuntary disappearances.
There were also contending views on the issue of removal from the protection of the law “for a prolonged period of time.” While a number of delegations mentioned the need for a certain amount of time to elapse between arrest and notification of detention, others stressed that enforced disappearance could be carried out from the moment of arrest and if there was refusal to acknowledge deprivation of liberty. NGOs especially stressed the need for prevention and rapid warning, thus, there is no need for a certain period to elapse.
On the question of intent, many delegations mentioned the need to establish intent in committing the crime of enforced or involuntary disappearance. But other delegations also mentioned the difficulty of proving intentions.
A number of delegations preferred to use the definition provided for in the Rome Statute of the International Criminal Court, but other delegations pointed out that the future instrument should be useful even in cases, which did not occur in a systematic and massive manner.
Who are the perpetrators? Conflicting opinions were raised by various delegations. Many said that it should solely be limited to state agents in view of the framework of responsibility vis-à-vis human rights. Considering the reality in many countries that a number of cases were perpetrated by non-state agents, there is the intent of some delegations towards the inclusion of such. The mention of "political organizations" and "organized groups" were considered imprecise considering that they do not underline individual responsibility. While the delegates were of a consensus that the prime responsibility for human rights protection belongs to the States, there was still no consensus reached regarding the issue of perpetrators.
On offenses and penalties
The need to consider disappearance as an independent offense in the domestic law was pointed out by several participants. This was met with varying positions considering the diversity of domestic systems. Federal states, for instance have difficulty in modifying their criminal legislation. Others mentioned that existing domestic laws could prosecute perpetrators of this crime.
AFAD stressed its importance considering that in as far as cases filed in local courts in Asia are concerned, alleged perpetrators are charged with common crimes. The example of the bill in the Philippines, entitled “Anti Enforced or Involuntary Disappearance Act of 2003,” was cited including its provisions on prevention, punishment, compensation and rehabilitation. If enacted into law, it will be the first anti-enforced disappearance bill in Asia.
The Chairperson believes that defining enforced or involuntary disappearances as a separate offense is a key element of the future instrument from which a large number of its provisions stemmed.
Levels of participation in the crime were also defined. Thus, discussion on this included the role of accessories, persons who attempted commission, conspiracy and the responsibility of superiors. The need to distinguish between direct perpetrators who participated in the commission of the offense and assisting in its preparations was also stressed. Superior authority's participation was considered important in the text, but a delegation said that this was already covered by the issue of accessories.
In general, levels of responsibility and corresponding appropriate penalties were discussed. Aggravating and mitigating circumstances have to be considered in this regard. Aggravating circumstances, according to a number of delegations, include the “death of the victim” and victims being pregnant women, minors and other vulnerable persons. The matter of death of the victim must be dealt with certain caution considering that families of the victims do not accept death due to absence of proof.
Protection Against Impunity
One of the core elements of this future instrument is protection against impunity. Points discussed in relation to this included Statute of Limitations, no justification for enforced disappearance, amnesties, pardons and similar measures.
After divergent views on the matter of the statute of limitations, the Chairperson presented a draft which mentioned that any State party, “which applies the statute of limitations in respect to enforced disappearances” should take measures necessary to ensure that the statute of limitations for criminal proceedings is substantial and proportionate to the extreme seriousness of the offense. The term of limitation “shall not commence as long as the perpetrators continue to conceal the fate and whereabouts of persons who have disappeared and these facts remain not clarified.”
A large number of delegations agreed that there is never any justification for enforced disappearance, even stemming from a superior officer or public authority.
The most controversial discussion in relation to protection against impunity delved into issues of amnesties, pardons and other similar measures. Many government delegations said that this could still be retained but should not hamper the right to obtain information and securing reparation. Others also mentioned that granting amnesties should be left to the discretion of States.
Families of the disappeared from Latin America and Asia however, strongly proposed deletion of the whole article. They put weight not only on the issue of redress, but of equal importance on the need to know the truth about what happened to the victims to ensure the prosecution of the perpetrators. Including this would be contradictory to protection against impunity. This, in fact, urged these organizations and international NGOs such as Human Rights Watch, FIDH, Amnesty International and many others to write a joint press release expressing their serious concern over the inclusion of these in the text. These NGOs believe that including these would be a step backwards in human rights.
In an effort to find a solution to the problem, the Chairperson cited different possibilities, e.g. the prohibition of amnesties before judgment or conviction of the authors of enforced disappearance; the removal of all references to pardons and amnesties and the inclusion of the chapter relating to victims that “no measure may have the effect of preventing effective recourse to any remedy for securing reparation nor interrupting the search for disappeared persons” and finally, that “ the right to obtain accurate and full information on the fate of disappeared persons, in particular" must be "guaranteed in all circumstances”
On domestic prosecution
Covered during the discussion of this fourth chapter were the jurisdiction of domestic courts, detention of a suspect, trial by independent impartial courts, protection of complainants, witnesses and family members of disappeared persons.
In terms of jurisdiction of domestic courts, the measures to establish jurisdiction, as stated in the Chairperson's Working paper, are the following: When the offense was committed within any territory under its jurisdiction; when the alleged perpetrator is one of its nationals, when the alleged perpetrator is in a territory under its jurisdiction.
Considering the varying views related to this, amendments were proposed by the Chairperson, to wit: to include one of the measures to establish jurisdiction over perpetrators who are either nationals of the state or stateless persons habitually residing in the territory. In terms of the perpetrators, there should be a qualifying phrase that mentions that the direct victim is one of its nationals and that the State estimates it to be appropriate.
In the last point, the Chairperson proposed that there be a separate paragraph that states explicitly that domestic jurisdiction has to be established when the alleged perpetrator is within a territory under its jurisdiction unless extradited or transferred to an international criminal tribunal, which jurisdiction it recognizes.
Delegations were concerned with the need to ensure the presence of the alleged perpetrator and as such, should derive this from the Convention Against Torture. Other concerns include the right of the detainee to be visited by the State of which he was a national or if stateless, by the State where he normally resided. Moreover, there should be communication by the detainee with the State by where he was a national pursuant to international legal obligations.
Another point discussed was the need for the alleged perpetrators to be tried in courts of general jurisdiction, which offers competence, independence, impartiality and respects guarantees of a fair trial.
On the use of military courts, there were two conflicting points of view. Some did not want to rule out the use of military courts but others said that the United Nations and the Organization of American States rule that military courts have no jurisdiction to try human rights violations.
Protection of complainants, witnesses and family members of disappeared persons was also discussed. But protection according to a number of delegations, have to be extended to family members, individuals with an important role to play in tracking down the victims, experts and lawyers. Moreover, the Chairperson, in his paper, emphasized that alleged perpetrators should exercise no pressure towards people involved in the whole process of searching for justice. Based on different opinions, the Chairperson proposed for the inclusion of family members of the disappeared as part of those persons that need protection.
The access to information should be accorded to people with legitimate interests. People with legitimate interests, according to many delegations, should include individuals deprived of liberty, close relatives and any persons considered by the court to be such. But other delegations wanted to restrict such right especially if it would delay the proceedings. The families of the disappeared from Asia and Latin America however, were of the opinion that the right to the truth should never be compromised. In a case of involuntary disappearance, the minutest clue about the case is very important to resolve it.
Thus, the final proposal of the Chairperson is: “Each State shall guarantee the right of the family members of the person deprived of liberty, his or her counsel or his legal representative of any person authorized by the person deprived of liberty or his family members, as well as of any person able to claim a legitimate interest to be kept informed, at their request, of the progress of the investigation…”
International Cooperation
In terms of international cooperation, the delegations were amenable to the Chairperson's paper saying that for purposes of extradition, enforced disappearance shall not be considered a political offense or an ordinary offense committed by political persons. However, the meaning should be clearly defined, they believed.
Many questioned the correctness of requiring States parties to include enforced disappearance among extraditable crimes because the contracting party, which did not acceed to the instrument, might disagree. One delegation said that a person suspected of having committed enforced disappearance should not be granted refuge.
Article 13 par. 7 of the Chairperson's text states that a State party cannot be compelled to extradite if there are serious grounds to believe that the request was presented with the aim to pursue or punish a person for reasons related to gender, race, religion, nationality, ethnical origin or political opinion, or that agreeing to this request would cause harm to this person for one of these reasons.
Delegations commended the Chairperson's paper, particularly article 15 stating different forms of humanitarian assistance such as legal assistance and other forms of cooperation between States which can facilitate the search for the victims.
On Prevention
The need to provide information on persons deprived of liberty had brought about two conflicting points of view. On one hand, some delegations said that it is the right of relatives to have access to information, but such right is not absolute taking into consideration the right to privacy and the need to avoid harming persons deprived of liberty. On the other hand, some delegations, especially the representatives of families of the disappeared said that in a case of an involuntary disappearance, information is very important. Persons for instance who were made to disappear in public places shouted their identity to prevent their disappearance. The question of privacy is for them not applicable to this situation.
Corollary to the need for information is the right to effective remedy necessary to obtain information. Thus, list of persons who have the right to remedy, according to some delegations have to be broadened. Moreover, it was stressed that remedies should be prompt.
Other preventive measures discussed were: keeping official registers which keep the information about persons deprived of liberty and the verification of release. To note, there are a number of cases wherein victims are considered released, but remain disappeared. The need to consider inclusion of releases after enforced disappearance was raised by a delegation. Another also said that the instrument should cover release on parole.
Other points related to prevention mentioned included impermissible conduct, training of law enforcement officials and non-refoulement. All these are important measures to prevent disappearances.
On Victims
Victims, as delegations defined, were classified into direct and indirect victims. Under victims is the element on the right to reparation stated in different forms in the Chairperson's paper, e.g. compensation, restitution, readaptation and restoration of honor and reputation. Many delegations suggested that the provision found in Art. 14 of the Convention Against Torture be adopted, the implementation of such be left to national courts in the light of domestic laws.
To qualify the kind of reparation the victims deserve, delegations suggested fair and swift reparation proportionate to the crime's severity. On one hand, the importance of distinguishing criminal, civil and administrative reparations was also pointed out. On the other hand, other delegation and families of the disappeared emphasized that this right to reparation is based on the right to truth.
Under the article on Victims is the subject on Children of Disappeared Persons. A number of delegations clarified that this group of victims can be classified into three: children subjected to enforced disappearance themselves; children detained with parents and deprived of their identity and children born in captivity.
There was a discussion on the issue of child appropriation, which, according to some delegations, was different from the crime of enforced disappearances. Thus, it was pointed out that “child stealing” might lead to finding the most appropriate term for this.
Finally, on the issue of return of appropriated children, there was a consensus to give prime consideration to the “best interests of the child.” vis-à-vis his or her reunification with the original family. Moreover, to strengthen the provision, it was proposed that the Convention on the Rights of the Child be taken into consideration.
The long march against impunity
It was only the second meeting of the Working Group, but the Chairperson's commitment had, to a large measure, motivated both government and non-government delegations to work hard and achieve something in the not-so-distant future. It may not be as fast as we want it to be, but with the conviction that this heinous crime should be eradicated from the face of the earth, one day, this future international instrument will see the light of day.
When ratified, hopefully in the near future, both the instrument and the monitoring body would take effect upon the former's entry into force It will be applicable both in times of peace and in times of war. In this long march against impunity, AFAD, linking arms with other organizations, should continue voicing out the voice of the voiceless, whose interests this future instrument will truly serve.
