A Primer on the United Nations Convention for the Protection of all Persons from Enforced Disappearance
Based on the definition provided for by the International Convention for the Protection of All Persons From Enforced Disappearance (2006), 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 places such a person outside the protection of the law.
There are three constitutive elements in enforced disappearances:
(1) deprivation of liberty in any form, (2) State responsibility or, at least, complicity, and (3) refusal to acknowledge the deprivation of liberty or concealment of all information on the victim. As a consequence, the victim of an enforced disappearance is placed outside the protection of the law and this determines the suspension of the enjoyment of all other human rights and freedoms of the disappeared person, who is left in a situation of complete defenselessness.
The Convention establishes that if non-State actors perpetrate acts of the nature of enforced disappearance, States are under an obligation to investigate such crimes and to bring those responsible to justice (Article 3).
This practice was first used by the Nazi in 1941 in the “occupied territories” especially in the extermination of the Jews. It was subsequently employed by the military and dictatorial regimes in Latin America and Asia and later even by formally democratic regimes. At present, Asia is the continent with the highest number of enforced disappearances reported to the United Nations Working Group on Enforced or Involuntary Disappearances (UN WGEID). Many cases of enforced disappearance in Europe and Africa have also been reported.
In 1978 after receiving many reports on cases of enforced disappearance perpetrated all over the world, the UN General Assembly issued its first resolution ever on the phenomenon of enforced or involuntary disappearance.
In 1980, despite the opposition of many countries in Latin America and Asia still under military regimes, the UN WGEID was established and continues to be operative up to the present.
Its mandate is essentially of humanitarian nature, since it acts as a channel of communication between the family of the victim and the government concerned. As such, the UN WGEID lacks any binding power as well as judicial competence and does not have the competence to condemn a State for human rights violations or to establish individual responsibility, or to order serious and thorough investigations, or to award any measure of reparation to victims of enforced disappearance. Since 1992, it has been monitoring the implementation by all countries of the 1992 Declaration on the Protection of All Persons from Enforced Disappearance which was adopted on 18 December of the same year by the UN General Assembly.
This is a universal standard setting document unanimously adopted by the UN General Assembly on 18 December 1992 under the Resolution 47/133. This Declaration, although non-binding, reproduces some generally recognized customary rules and establishes the principles that shall guide and govern all States in the prevention and suppression of the practice of enforced disappearance. In particular, provisions of the said instrument include, among other things, the following:
Definition of the practice of enforced disappearance and description of the different human rights violated;
Repudiation of the practice of enforced disappearance under all circumstances;
Obligation 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;
Obligation of each State to make enforced disappearance an autonomous offense under its criminal law and sanction it in accordance with its extreme seriousness;
No order of any public authority, civilian, military or other, may be invoked to justify an enforced disappearance;
All persons deprived of their liberty should be held in official detention centers and information be given to families on detainees (right to information);
The State is obliged to investigate all reported cases of enforced disappearance (right to truth) and persons involved in denouncing cases and in the investigation process, should be protected from any form of harassment;
Enforced disappearance is a continuing offense and therefore, statutes of limitations for criminal proceedings, where applicable, must be substantial and commensurate to the extreme seriousness of the offense;
Enforced disappearances are to be considered crimes against humanity when committed as part of a widespread or systematic practice and are hence, imprescriptible;
Persons who have, or are alleged to have committed an enforced disappearance shall not benefit from any special amnesty law or similar measures;
Only ordinary tribunals shall be competent to try persons alleged to have committed an enforced disappearance, to the exclusion of any other special tribunal, in particular military courts;
The disappeared people and their families have the right to adequate compensation, including the means for as complete a rehabilitation as possible;
Children who are victims of enforced disappearance should receive special protection and the abduction of children and the act of altering or suppressing documents attesting their true identity must be codified and sanctioned as autonomous and very serious offenses. There shall be an opportunity, in States which recognize a system of adoption, for review of the adoption of such children and, in particular, for annulment of any adoption which originated in enforced disappearance.
The Convention is different from the 1992 Declaration in the sense that the former is a treaty of universal scope, which will be legally binding for the States that ratify it. Its text was approved on 23 September 2005; adopted by the UN Human Rights Council on 27 June 2006; adopted by the UN General Assembly on 20 December 2006 and opened for signatures on 7 February 2007 in Paris, France. On that occasion, 57 States signed it. Since then, signatures have increased to 88. As of June 2011, 27 States have ratified the Convention. It entered into force on 23 December 2010, that is 30 days after the 20th instrument of ratification was deposited with the UN Secretary- General by Iraq. As of the time of writing, Japan, Kazakhstan and Iraq are the only Asian States that have ratified the Convention.
From the initial assessment of the Asian Federation Against Involuntary Disappearances (AFAD), the following are some factors which contributed to the successful adoption of the Convention:
Gaps in international human rights and humanitarian law that permit the practice of enforced disappearances to develop and spread in countries and regions all over the world, especially Asia. Families and victims quickly perceived such situation and began to lobby for an international treaty to fill those gaps;
Insufficiency of the 1992 Declaration and the UN WGEID to stop the phenomenon spreading all over the world as they are only declaratory in scope. There was an urgent need for a universally binding international instrument to stop enforced disappearance;
The Latin American Federation of Associations of Relatives of Disappeared- Detainees’ (FEDEFAM’s) indefatigable and persistent efforts to work for the establishment of an international convention to protect people from enforced disappearances and to concretize its slogan: Nunca Más (Never Again!) were a major force in pushing for the final adoption of the Convention by the UN General Assembly;
The cooperation of the different organizations of families of disappeared people from various continents and of international human rights organizations which joined efforts to lobby for the Convention during the three-year drafting and negotiation process (2002-2005) within the then especially mandated UN Inter-sessional Working Group to Elaborate a Draft Legally-Binding Normative Instrument for the Protection of All Persons from Enforced Disappearance were very useful in convincing States to adopt a new treaty with an independent monitoring system. The excellent combination of the true-to-life experiences of the families and the legal expertise of the international NGOs greatly strengthened the Convention’s contents, stressing its urgency. There was a collective voice loud enough to be heard at the UN in Geneva, Switzerland;
The lobbying at the UN and the visits by organizations of families of the disappeared to the Ministries of Foreign Affairs in different countries and to their Permanent Missions in Geneva and New York helped convince governments of the political, moral and practical value of the Convention to the families of the disappeared and to all peoples;
The thousands of cases of enforced disappearance which remain unsolved in various parts of the world, as can be seen in the annual reports of the UNWGEID, are visible reasons to create a new treaty that protects all persons from enforced disappearance;
The support of the media and civil society was indispensable.
In general, the Convention consecrates as binding all the principles which were already mentioned in the 1992 Declaration. Further, it better specifies the obligations of States in order to prevent and suppress the practice of enforced disappearance. The Convention establishes the non-derogable right of everyone not to be subjected to enforced disappearance. No circumstance whatsoever, be it a state or threat of war, internal political instability or any other public emergency, may be invoked to justify an enforced disappearance. The Convention considers that the widespread or systematic practice of enforced disappearance is a crime against humanity. Indeed, enforced disappearance is a crime under international law.
Furthermore, the Convention provides for the right of the relatives of the disappeared persons and of the society as a whole to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate and whereabouts of the disappeared person.
According to the Convention, each State Party shall codify enforced disappearance as an autonomous offense under its criminal law and punish it by appropriate penalties which take into account its extreme seriousness.
State Parties to the Convention shall cooperate in searching for, locating and releasing disappeared persons and, in the event of death, in exhuming and identifying their remains and returning them to their families. Each State Party shall take appropriate measures in this sense.
Moreover, the Convention contains a provision that emphasizes the right to form and participate freely in organizations and associations supporting the cause of the disappeared.
Further, the Convention provides that:
Enforced disappearance is a continuing offense and statutes of limitations for criminal proceedings shall not apply until the fate and whereabouts of the victim are established with certainty;
Enforced disappearances constituting crimes against humanity (systematic or widespread practice) are imprescriptible;
No one shall be held in secret detention;
All States Parties shall establish and maintain up-to-date official registers of persons deprived of liberty and, upon request, provide some basic information on people deprived of their liberty to judicial authorities and any person with a legitimate interest in this information;
In cases of enforced disappearance, “victim” means the disappeared person and any individual who has suffered harm as a direct result of an enforced disappearance; and
All victims (in the broad sense stated above) of disappearance have the right to obtain reparation and prompt, fair and adequate compensation. This shall include:
Satisfaction, including restoration of dignity and reputation; and
Guarantees of non-repetition.
States shall prevent and punish under domestic criminal law the wrongful removal of children who are subjected to enforced disappearance, children whose father, mother or legal guardian is subjected to enforced disappearance or children born during the captivity of a mother subjected to enforced disappearance; as well as the falsification, concealment or destruction of documents attesting to the true identity of the children concerned. States shall have legal procedures in place to annul any adoption or placement of children that originated in an enforced disappearance.
At present, the international bodies tasked to address in different ways the issue of enforced disappearance are the following:
European and Inter-American Court of Human Rights and the African Commission and Court of Human and Peoples’ Rights;
International Criminal Court (ICC) – It is applicable only in cases of disappearances happening as part of a widespread or systematic practice and for States that have ratified the Rome Statute;
United Nations Human Rights Committee (HRC); and
International Committee of the Red Cross (ICRC).
These bodies, however, have their own respective limitations.
The UN WGEID established in 1980, for instance, lacks any binding power as well as judicial competence. Its mandate is essentially humanitarian and despite much valuable work, it has not been able to stop the spread of enforced disappearance.
The other mechanisms are only competent for Europe, Latin America and Africa respectively and serve the purpose of establishing State responsibility.
On the other hand, the ICC is a court of international criminal law which establishes criminal responsibility of individuals for crimes against humanity, genocide, and war crimes. Victims of enforced disappearance and their relatives do not have direct access to this international tribunal, for it is so created so as to condemn international criminals and not to primarily protect the rights of the victims. It may take years until a perpetrator is convicted.
For its part, the Human Rights Committee (HRC) serves as the monitoring body of the International Covenant on Civil and Political Rights (ICCPR) for all States that have ratified it and its First Optional Protocol. As many States are Parties to the Covenant, it has a colossal workload and a huge backlog that is almost paralyzing its action. The HRC is a quasi-judicial body and its views on individual communications lack a binding power.
The ICRC works to guarantee the implementation of the Geneva Conventions and their Additional Protocols. However, its competence is limited to situations of conflict and to international humanitarian law. Further, the ICRC lacks any binding or judicial power and all its actions are highly confidential and strictly humanitarian.
One of the most important achievements of the Convention is the establishment of the new ten-member Committee on Enforced Disappearances. The members of the Committee were elected on 31 May 2011.
The Committee is tasked to carry out the following functions:
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.
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 Committee requests to search for their loved ones) within a time limit set by the Committee itself. In the light of the response provided for by the State Party concerned, the Committee shall transmit a recommendation to the respective State and inform the person who filed the request regarding the process. The Committee may also request the State to take appropriate actions, including the adoption of interim measures and to report it to its members. Finally, the Committee shall continue its efforts to work with the State concerned for as long as the fate and whereabouts of the disappeared person remain unresolved.
Request one or more of the members of the Committee, (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 and recommendations to the Committee without delay.
Receive and consider communications for or on behalf of individuals 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 Note: If a State does not expressly accept this competence, the Committee may not receive any individual communication. It is worth–noting that, among the 27 States that have ratified the Convention to date, only 10 have declared to accept the competence of the Committee to receive and consider individual communications. At present, no Asian State has done so.
Upon declaration of recognition of competence by the State Parties concerned, the Committee 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.
Urgently bring a matter (when it receives information which appears to contain well-founded indications that enforced disappearance is being practiced on a widespread or systematic basis in the territory of a State Party) to the attention of the General Assembly of the UN, through the UN Secretary- General.
Asia, at present, lacks a strong regional legal instrument or procedural mechanism to protect, promote and uphold human rights, be it a Convention, a Commission or a Court. The effectiveness of the ASEAN Intergovernmental Human Rights Commission still remains to be proven amidst various skepticisms on its mandate. In comparison, Latin America has the Inter-American Human Rights System and the Inter-American Convention on Enforced Disappearances while Europe has several human rights instruments such as the European Convention on Human Rights and the European Court of Human Rights. The UN is the only venue that the families of the disappeared in the Asian region can use.
Moreover, at present, not a single country in Asia has a national law criminalizing enforced disappearance as an autonomous crime under domestic law. Thus, the Convention, if ratified and duly implemented, will facilitate the enactment of pieces of national legislation criminalizing enforced disappearance, which will also have a crucial preventive role.
Moreover, in the recent reports of the UN WGEID, Asia is the continent which submitted the highest number of cases. The reported cases both occurred in the past and continue to happen at present. With the absence of national, regional and international mechanisms criminalizing enforced disappearances, we can never prevent enforced disappearances from happening in the Asian region and it is impossible to effectively combat impunity.
A State that ratifies the Convention will be compelled to enact the necessary domestic legislation to ensure that it fulfills its international obligations. This will affect States in their national policies especially in the area of security and political repression, where they will be obliged to act in a humane manner.
If duly accepted, the competence of the Committee to receive and consider individual communications will grant an international venue to turn to in order to obtain justice. This will be of particular importance for Asian countries, which do not have a strong regional human rights mechanism for protection from human rights violations.
A Convention is a fundamental step in the struggle against impunity. It would ensure that States have the obligation to identify, judge and sanction perpetrators, to guarantee the right to know the truth, and to provide relatives of the disappeared with integral reparation. Moreover, it would provide hope to the survivors and the relatives of the victims. It would also establish a clear set of effective preventive measures.
Help educate the public by informing about the reality of enforced disappearances and the importance of the Convention in securing safeguards for human rights. Within organizations, it will be beneficial to discuss the issue among people within our respective organizational structures as well as assist in distributing campaign materials, i.e. primers, pamphlets, posters, etc.
Conduct trainings among various groups, especially among the media and the academe on the contents of the Convention and in the aspects of campaigning and lobbying, which shall produce experts among selected participants to echo such trainings to more groups and sectors.
Assist in strengthening media work to further project the issue to a greater audience.
Popularize technical information materials about enforced disappearance and the Convention.
Translate information materials from English to other languages and vice versa so that more people will be able to read and understand the issue.
Seek opportunities to lobby among heads of States, parliaments and other government officials or ministers who are influential in deciding for the Convention’s ratification.
It can be helpful to conduct a study on the attitudes of the different governments concerning human rights in general and the Convention in particular. Results of the study will give a better understanding of governments’ position vis-à-vis human rights. Consequently, it will provide more direction to the campaign and lobbying plans and make the strategies and tactics of the organizations sharper and more effective.
The study can also cull the lessons from the various realities people face in different parts of the world. Considering these lessons in the planning processes will further contribute to the effectiveness of the international campaign against disappearances and impunity to achieve a world free from enforced disappearances.
Families of the disappeared are also encouraged to avail themselves of existing remedies by doing the following things:
Keep sending communications to the UN WGEID. It is primarily important to update the UN WGEID 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, i.e. if the UN WGEID sends information to the source and the source does not respond within six months, the UN WGEID will drop the case;
In case there are reprisals or threats, immediately inform the UN WGEID and ask for its prompt intervention. It is important to periodically update the UN WGEID once it has provided prompt intervention measures in order to establish a fruitful and continuing dialogue;
Formulate general observations and allegations to the UN WGEID on the compliance of local governments with their obligations under the Declaration; and
Submit communications to the HRC if the State is a Party to the ICCPR and its First Optional Protocol.
In view of the lessons of our years of lobbying, the principal actors in lobbying for the adoption of the Convention deemed it imperative to form the International Coalition Against Enforced Disappearances (ICAED) in order to secure the entry into force of the Convention at the earliest possible date and to campaign for as many signatures and ratifications as possible. The ICAED was formally launched in Geneva, Switzerland on 26 September 2007.