The UN Negotiation on the Draft Treat on Enforced Disappearances:
The Issues at stake and the Challenges to Human Rights Advocates
by Atty. Cecilia Jimenez
International Legal Consultant 1
Enforced disappearance is an issue that has been with us for a long time. Unfortunately, the scourge of the problem remains: the fate of many of the disappeared remains unknown, the uncertainty and anguish of their relatives and friends continue, impunity remains as the perpetrators and participants in the commission of the crime of enforced disappearance continues. Society bears much of the brunt of this situation, as this is passed on from generation to generation. Moreover, cases of enforced disappearance continue to be committed in many countries worldwide, perpetuating this seemingly unending problem.
The international legal regimes of human rights and humanitarian law have long condemned this practice. Many international and domestic structures and measures have been set up in order to, at the minimum, address the humanitarian aspects of this continuing problem. However, in the legal fight against disappearances, there remains the big vacuum of how to effectively criminalize the human rights violation of enforced disappearance. One of the efforts that have been going on for many years now is to establish, at the international level, the international crime of enforced disappearance and how to transpose that crime into the domestic jurisdiction of States.
The purpose of this article is to summarize and analyze the proceeding of one of the most significant attempts in this regard. Emphasis shall be given to those issues that pertain particularly to the context of enforced disappearance in Asia.
Background
On January 6 to 17, 2003 in Geneva, The Asian Federation Against Involuntary Disappearances (AFAD) was among the non-government organizations that attended and participated in the first session of a new United Nations Working Group concerned with the issue of disappearances. This working group is officially called the “inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of persons from enforced disappearances” and was set up by the UN Commission on Human Rights.
2 Its main objective is to eventually finalize an international draft legal instrument that will be binding on states and be legally enforceable in the jurisdiction of all States that will ratify such instrument.
This new Working Group has been set to engage in what is technically called a “standard setting exercise.” It is different from the already existing UN Group on Enforced or Involuntary Disappearances (WGEID). The WGEID, also set up by the UN Commission on Human Rights for more than two decades now, is composed of independent experts. On the basis of its humanitarian mandate, it receives cases of disappearances from any country and tries to resolve the cases by following them up. The WGEID also conducts visits to countries and provides recommendations to the State concerned in order to assist governments and civil societies to resolve the problem. Moreover, it studies the over-all phenomenon of disappearances all over the world and makes appropriate analyses and ensuing recommendations. As far as Asia is concerned, it must be recalled that the WGEID had made on-site visits to two Asian countries, namely to the Philippines in the 1990
3 and Sri Lanka in 1991, 1992 and 1999.
4 The WGEID has also been receiving cases from many of the Asian countries.
This new UN Working Group, on the other hand, is open to the participation of any government as well as NGOs with consultative status with the UN. Its principal mandate
5 is to prepare a draft legal instrument “on the basis of the Declaration on the Protection of All Persons From Enforced Disappearances”
6 and taking into account a draft convention on the same issue.
7 It also has to take into consideration the findings of a UN independent expert who has made a report on the gaps and ambiguities in the present international legal framework that need to be addressed by such a draft legal instrument.
8
Among the Asian countries present 9, the first session of this Working Group saw the participation of the following: China, India, Japan, Malaysia, Nepal, Pakistan, the Philippines, Republic of Korea, and Thailand. Among the NGOs, mainly international NGOs participated in the discussions. Presided by the French Ambassador in Geneva, the working group also benefited from the contributions of legal experts from the UN system.
10 All in all, the discussions in the Working Group were substantive and provided a good basis for future negotiations.
Indeed, after many years of studies and proposals undertaken by different UN experts and after much lobbying by NGOs and Associations of families and relatives of the disappeared, the governments comprising the UN Commission on Human Rights agreed to set up this new Working Group. The establishment of the new working group by itself can be seen as a success in continuing the pressure to keep the issue of enforced disappearances within the purview of present human rights concerns. Moreover, with this Working Group, the discourse on enforced disappearances will elevate the struggle to fight disappearances to a discussion of concrete norms that will prevent and repress disappearances, as well as redress the wrongs done to the victims and their families. Hopefully, with the elaboration of a draft international instrument, which however may still take some years, the world will have in its hands a concrete tool to fight the scourge of disappearances.
Why a legally binding instrument on enforced disappearances?
In the presentation made by the UN independent expert, it was stressed that a legally binding instrument will fill in the normative gaps currently existing in international law in the protection from enforced disappearances. Among these gaps was the significant fact that under current criminal law, the act of an enforced disappearance could be said to merely constitute a violation of several human rights. These rights are mainly the rights to protect against torture and against arbitrary deprivation of liberty, the rights to life and to security of person, the right to a fair and public trial as well as the right to recognition of legal status and equal protection of the law. Although there exists the UN Declaration on the Protection of All Persons from Enforced or Involuntary Disappearances, an important document containing the most significant norms under international law concerning protection against disappearances, the Declaration is not nor legally binding. Exceptionally, the Statute of the International Criminal Court recognizes the crime of enforced disappearance as a distinct crime. However, enforced disappearance in the ICC statute is recognized as a crime against humanity and is applicable to individual criminal responsibility mainly committed as a part of widespread and systematic practice, and not to individual instances.
Moreover, the rights of the families of the disappeared are not, as such, recognized by international criminal law. The independent expert emphasized that since enforced disappearance is a continuing violation, it is important to make cognizance of the rights of the families, among others, to know the truth and to avail of remedies.
The International Committee of Red Cross also discussed the need for a binding instrument as a compliment to the protection afforded under international humanitarian law. In a statement, the ICRC stressed that the protection of persons from enforced disappearances under international humanitarian law (IHL) was limited to cases occurring in international armed conflict and, to a much more limited extent, non-international armed conflict which is currently more prevalent. Moreover, the IHL categories of “protected people” during international armed conflict are mainly enemy nationals and protection does not extend to a State’s own nationals.
11
In this discussion, therefore, the issues revolved principally around the lack of a binding legal obligation to ensure that enforced disappearance is recognized as a distinct human rights violation and transposed, as such, to domestic jurisdictions. To recognize that an act or a series of acts is a criminal act of enforced disappearance will go a long way not only in acknowledging that the problem continues to exist, but also in enabling the victims, survivors and their families to avail of redress in terms of truth and justice.
Moreover, the issue of universal jurisdiction was discussed to the extent that a legally binding instrument for protection against disappearances would be able to prevent the maintenance of safe havens for perpetrators of disappearances. Similar to the mechanics provided by the UN Convention against Torture, a legally binding instrument could fill in the gap by ensuring that the perpetrators of disappearances would not be able to avail of protection from other States. The issue of international co-operation in this regard is a pertinent one and one that deals with the issues of extradition and international co-operation.
Last but not least, it was stressed that the recognition of a separate right to protection against enforced disappearance should be one that secures the right as non-derogable human right. As such, enforced disappearance would not be subject to any justification, state or emergency or situations of armed conflict, desirably similar to that enshrined to the UN Declaration on enforced disappearances
12 and comparable to a similar provision in the UN Convention Against Torture.
13 The draft Convention even goes further by stating that the notion of non-derogability applies to the State obligations established in the draft Convention.
14
All in all, the participants in the Working Group acknowledged the need for a legally binding instrument that would fill the gaps under international human rights as well as international humanitarian law. Such a legally binding instrument should be applicable both in times of war and in time of peace. Moreover, the instrument, as a human rights treaty, should be able to complement international law in both protection and prevention.
Lastly, NGOs were emphatic that enforced disappearances are aimed not only at the groups and individuals that are the victims of this horrendous practice. Enforced disappearances, after all, are usually aimed at striking terror into the population. One thing that clearly stood out therefore, is the conviction that an international binding legal instrument would propel the development of domestic criminal law that would not only help prevent and deter the commission of enforced disappearances, but would also enable society to protect themselves.
The issues at stake in the fight against disappearances
Since this was the first session of the Working Group, the participants dwelt on general issues that pertained to the future drafting of such an instrument. At the suggestion of the Chair, the discussions were focused on the substantive issues. It was agreed that discussions on the form of a future instrument, which could either be a separate treaty or an optional protocol to either of the two pertinent existing human rights treaties
15, would be deferred until a later time. The future monitoring mechanisms and other procedural issues would likewise be discussed towards the end of this long process.
What constitutes “enforced disappearances”
The first substantive issue dealt with were the controversial topic of definition, offenses and appropriate penalties. While it was clear that there appears to be a need to recognize the right to protection against enforced disappearance as a separate, distinct right under human rights law, the debate revolved around whether it is necessary to transpose this recognition as a separate, distinct criminal offense under criminal jurisdictions. The discussion also encompassed the scope of the act of enforced disappearance and the elements that need to go into it. Thus, the discussions on definition of the right against enforced disappearance and as a distinct criminal offense overlapped.
Notice was taken by some delegations from the definition provided by the draft Convention on enforced disappearances proposed by the UN Sub-Commission and which states:
“forced disappearance is considered to be the deprivation of a person’s liberty, in whatever form or whatever reason, brought about by agents of the State or persons or groups of person acting with the authorization, support or acquiescence of the State, followed by an absence of information, or refusal to acknowledge the deprivation of liberty or information, or concealment of the fate or whereabouts of the disappeared persons.”
16
The issue of the definition of enforced disappearance as a distinct criminal offense also pertains to the fact that enforced disappearance is a continuing crime and entails the extension of time or its duration. The issue is of utmost concern because it gives rise to the accumulation of rights on the part of the victims and their families, and responsibilities in behalf of the State and the perpetrators over time.
A good number of government delegations felt that the definition was either too broad or needed more detailed elements for the qualification of enforced disappearance as a distinct criminal offense under international law. On the other hand, delegations also felt that the definition of enforced disappearance should be flexible enough to respond to the exigencies of the commission of the act as a result of different contexts as well as because of the different systems prevailing around the world.
All in all, the participants took the view that “enforced disappearance” should contain at least three constituent elements:
17
a) Deprivation of liberty in whatever form;
b) Refusal to acknowledge that deprivation of liberty;
c) Removal of the disappeared person from the protection of the law and all universally recognized rights.
Nevertheless, there was no consensus among the government delegations on the necessity of defining enforced disappearance for the purpose of constituting the acts as an independent offense under domestic criminal law. Other governments, on the other hand, acknowledged the need to concretely address the problem in their criminal legal jurisdictions. The UN independent experts added that a distinct crime of enforced disappearance would facilitate the implementation of the State’s responsibility to endure protection against the act, to repress the crime, to give redress to the victims and their families and to prevent the commission of the crime. The NGOs were quite assertive in pointing out that a distinct offense of enforced disappearance would better reflect the complexity of the enforced disappearance and the motives behind it. Instead of relying on the repression of individual acts that constitute enforced disappearance, the recognition of enforced disappearance as a separate act would fill in the normative gaps in the international human rights system. On the domestic level, it would make more effective domestic criminal sanctions and facilitate the provision of redress as well as the implementation of international co-operation among States.
How is “enforced disappearance” committed?
Further to the discussion of definition and institution of a distinct offense of enforced disappearance, views on the issues on the different “levels” of the responsibility in the commission of the offense were expressed by the participants.
From one perspective, it was agreed that the different kinds of ‘participation’ in a crime should be recognized. Based on the draft Convention, these are: direct participation, instigation, incitement, or encouragement; conspiracy or collusion; attempt; and concealment.
18 Because of the fact that the discussion did not come to a conclusion on the issue of the institution of disappearance as a
distinct criminal offense, there was no clear discussion on how these “levels” should be appraised in relation to the individual acts constituting an enforced disappearance. There was, however, an understanding that the different levels of participation should naturally contribute to the determination of the appropriate penalties and according to the gravity of the offense.
There was also a debate on the issue of objective and subjective responsibility in the commission of a crime of enforced disappearance or any of the acts constituting it. The draft Convention specifies that the perpetrators and other participants shall be punished “where they knew or ought to have known” of their participation of the commission of offense. Delegations, however, were divided on the issue of how far intent, on one hand, and the duty not to be negligent, on the other hand, apply and in what constitute acts they should be held responsible for an enforced disappearance. Other questions such as command responsibility and the failure to act to prevent enforced disappearance or any of its acts were also left unresolved in the discussions.
The discussion above was further related to the qualification or aggravation of enforced disappearance when it is considered not as an individual or isolated act of enforced disappearance but rather as a crime against humanity. In this case, the act of enforced disappearance is a part of a widespread and systematic practice. The objective and subjective elements, i.e., whether the participants knew or should have known, would be very relevant to the definition of the crime against humanity as well as to the appropriate penalties.
Who perpetrates “enforced disappearance”?
Last but not the least was the issue of who could be considered as perpetrators of the act of enforced disappearance. While there was an agreement that the primary responsibility for the protection of human rights lies on the State, there were considerations that enforced disappearance are also perpetrated by non-state actors.
The draft Convention, similar to other existing human rights treaties, provides in the definition that enforced disappearance is committed by “agents of the State or by person or groups of person acting with the authorization, support or acquiescence of the State”.
19 Some delegation insisted that since both State and non-State actors commit enforced disappearances, a legally binding instrument should make both types of perpetrators liable for the crime. On the other hand, some delegations, while acknowledging such developments, took the view that extending the applicability of the notion of enforced disappearance to non-State actors, as possible authors of the crime would dilute the obligations State under international human rights regime.
On the other hand, the independent expert expressed that every human right entailed a triple obligation on the part of the State: to respect the right, give effect to the right and to protect that right against violations by third parties.
20 In the case of disappearances, this would imply that the State should be able to implement those triple obligations:
1. The State should not commit enforced disappearances;
2. The State should, among other acts, set up a legal and administrative structure that would effectively prevent the commission of enforced disappearance and that would provide redress to victims and their families and
3. The State should effectively protect individuals from the commission of enforced disappearance by third parties (e.g. non-state actors), including punishing the perpetrators and other participants.
The independent expert was of the view that the definition of enforced disappearance should go beyond the traditional human rights concept of referring to exclusively to State agents and should encompass non-State actors similar to that of the Statute of the International Criminal Court. He emphasize that extending the applicability of the notion of enforced disappearances to non-estate actors should not be considered as implying a risk to dilute or weaken the state obligations according to the triple obligations.
What are the necessary measures to combat impunity acts of enforced disappearance?
A relatively significant part of the discussions dwelt on the necessary measures that a binding instrument should include in order to combat impunity. One of the expressed rationales for the necessity of such a binding international legal instrument is for it to be an effective tool in the fight against impunity. Impunity in the perpetration of enforced disappearance has, indeed, been identified as one of the principal causes for its non-resolution as well as its prevalence and continuity worldwide. The WGEID, in its work, has stressed the importance of bringing the perpetrator to justice, who should be prosecuted either by domestic courts or by international courts, the later in the case of enforced disappearance as crime against humanity.
21
The first measure discussed was the non-applicability of statutory limitations to enforced disappearances that constitute crimes against humanity, is already provided by the draft Convention.
22 This standard is in accordance with the norms already set by the UN Convention on the Non-Applicability of Standard Limitations to War Crimes and Crimes against Humanity.
23
There was, however, no clear resolution on whether enforced disappearances that did not constitute crimes against humanity should be subject to the statute of limitations. Many agreed that in the case of statute of limitations applies, the period should be the longest period afforded to the most serious of crimes recognized in each particular domestic jurisdiction, although some States do recognized the non-applicability of statute of limitations to the most serious crimes. Moreover, there were a variety of views on when the period should start to run. The fact, however, that enforced disappearance is a continuing human rights violation was recognized as part of the framework in determining when the period of limitations should run. Whatever the resolution of this discussion would be, it was obvious that these approaches could be relevant only if enforced disappearance is recognized as a separate and distinct criminal offense in the criminal jurisdictions.
24
Last but not least, it was generally recognized that where legal remedies are ineffective, the statute of limitations could be considered suspended, as proposed by the draft Convention.
25 However, no clear position from the States emerged on when legal remedies could be considered ineffective.
The discussion on the issue of immunity was guided by the already-existing provisions in the UN Declaration.
26 and the draft Convention 27
Both texts provide that no privileges, immunities or special exemptions should be admitted in trials of persons for enforced disappearances, without prejudice to the Vienna Convention on Diplomatic Relations.
28 It was recognized that the immunity should be restricted to the maximum possible extent subject, however, to current international law and, to a limited extent, domestic law.
The draft Convention provides that perpetrators of enforced disappearances or any of the acts thereto shall not benefit from
amnesties or similar measures that would have the effect of exempting them from criminal liability or penalty.
29 Moreover, the granting of pardons shall take into consideration the extreme seriousness of the offense.
30 Government delegations were generally averse to the provisions, suggesting that the prohibition of amnesties should be applicable only to enforced disappearances that constituted crimes against humanity. For enforced disappearances that did not constitute crimes against humanity, amnesty could be unacceptable only on the ground of the seriousness of the offense. Moreover, some governments thought that amnesty could be permissible if certain conditions were fulfilled such as inquiries, adequate compensations and appropriate penalties imposed on the perpetrators. On the other hand, many of the NGOs expressed their concerns that amnesties should be prohibited in all cases of enforced disappearances based on the experience that amnesties effectively contributed to impunity. Moreover, inapplicability of amnesty to enforced disappearances reflects the gravity of the act, the nature of the continuing violation, the motivation behind the commission of the act, whether or not it is a crime against humanity, and the effects on the victims, their families and society as a whole.
Asylum and refuges were discussed as means for perpetrators to escape from their liability from persecution for human rights violations. One aspect of the discussion focused whether there should exist an obligation for States not to return a person to another State if there are grounds that the person would be subject to enforce disappearance, as provided by the draft convention.
31 The second aspect concerned the State’s obligation not to give sanctuary that could be used by perpetrators of e enforce disappearances.
32 Some delegations expressed the view on the need to link the first obligation with the second. Nevertheless, the discussion on this issue came to a tentative conclusion that the Working Group should strive to agree on the limitation of these potential sanctuaries. The relevant legal issue in the granting of asylum and refugee, particularly the exclusion clauses of the Geneva Convention relating to the Status of Refugees,
33 were considered to provide proper guidance.
How will domestic prosecution and international co-operation work?
The establishment of jurisdiction of domestic courts over the act or acts constituting enforce disappearance is necessary in order for domestic courts to take cognizance of the crime. The draft Convention provides for territorial jurisdiction over the commission of the crime
34 or the presence of the alleged perpetrators or participants regardless of where the enforce disappearance was committed and regardless of nationality.
35 Effectively with the latter proposal, the draft Convention likewise provides for universal jurisdiction.
36 Again, it became obvious that, just as in establishment of jurisdiction over cases of torture as provided by the UN Convention against Torture, it was necessary to define and institute a distinct criminal offense of enforce disappearance in order to establish jurisdiction over the act.
37
The Chairperson of the Working Group, in summarizing the discussions on the issue, stated that the establishment of the broadest possible jurisdiction for domestic criminal courts in respect of enforce disappearances appeared to be essential if the draft instrument would be effective.
38 However, there was an equivocal discussion on the establishment of universal jurisdiction over the crime of enforce disappearance. It remains to be seen how the present international developments on the practice of universal jurisdiction will influence the resolution of this issue.
This leads us to the issue of extradition and juridical co-operation. Aside from the importance of the establishment of jurisdiction over enforce disappearances in cases subject to extradition, the Working Group came to a tentative conclusion on not considering enforce disappearance as a political offense. This is an important assertion that would contribute to the elimination of sanctuaries for perpetrators of enforce disappearance. Moreover, in the absence of bi-lateral extradition treaties, the draft instrument should serve as a legal basis for extradition, again similar to the UN Convention Against Torture.
How could enforced disappearance be prevented?
Obviously, the supervision of detainees according to human rights standards is an important lynchpin in the prevention of enforce disappearance. One of the achievements of the first session of the Working Group is the preparation of the initial list of State obligations and principles with regard to the supervision of detainees,
39 as follows:
1. Prohibition of incommunicado detention and of secrete places of detention;
2. Establishment of register of detention;
3. Respect for the right of detainees to notify their lawyers, families and any persons with a legitimate interest in their situation;
4. Establishment of mechanisms of habeas corpus and other guarantees against arbitrary detention;
5. Obligation to conduct an investigation;
6. The need to punish agents of the State who are guilty of obstruction; and
7. The need to suspend persons suspected of enforce disappearance from all official duties for the duration of the investigation.
Connected with these State obligations is the necessity of juridical supervision over places of detention and the establishment of simple, rapid and effective remedies before juridical authorities.
Concerning Education and Training, many participants of the Working Group stressed the need to directly link efforts related to these with those authorities responsible for holding persons in detention. Proposals concerning the objectives of education and training in this regard were also spelled out. Some of these were: preventing the involvement of personnel in enforced disappearance or any act related thereto, including the duty to disobey unlawful orders; recognition of the importance of prevention of enforced disappearance; and urgently investigating and resolving cases of enforced disappearance.
Who are the victims? What are they entitled to?
It was agreed that the definition of who are the victims should not be restricted to the disappeared persons but should include others adversely affected by the disappearance. In the definition of who are those aversely affected, guidance was sought from the UN Declaration of Principles of Justice for the Victims of Crimes and Abuse of Power.
40 Nevertheless, there were diverging opinions on the desirability of scope of the definition of victims provided by the draft Convention
41 and participants were reluctant to resolve the definition. The Chair, however, emphasized that a broad definition of victims is required and the question remains on how precisely the categories concerned should be defined in the instrument in order to allow domestic court latitude.
42
The right reparation for victims of enforced disappearance under international human rights is presently provided by the UN Declaration.
43 Guidance could further be sought from the standards established by the UN Convention against Torture,
44 as well as the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,
45 as well as the UN “Basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and humanitarian law.”
46 Moreover, the draft Convention on enforced disappearance provides specifically for the right to reparation
47 However, in the discussions in the Working Group, government delegations were again reluctant to commit to the extent of the right to reparations. One minimum guarantee that was accepted was the right of victims to participate in all stages of proceedings and their entitlement to the broadest protection possible against violations of their rights during such proceedings.
48
Conclusions
It was generally agreed that the first session of the Working Group established an important basis of future negotiations. Most, if not all, of the major issues connected with enforced disappearances were discussed and relevant points flagged by the participants. The NGOs and relatives’ associations present and participating were able to bring to the negotiations their particular points of view.
The first session is merely the start of the long process of the elaboration of a draft instrument, a process that normally takes the years. There was, however, a general intent of trying to conclude the process in the shortest possible time, which optimistically could be five years.
Despite the good atmosphere and positive intent, however, the first session already revealed the challenges that faced the NGOs and relatives associations in making this process relevant to the fight against disappearance. The main challenge is to be able to ensure that the process will contribute to the elaboration of an effective instrument that will combat the impunity that prevails in the struggle against enforced disappearance.
Already, some of the major and controversial issues have arisen from the general discussions. Some of these are the following, among others:
1. The definition of the crime and the elements that constitute the crime;
2. The levels of participation and responsibility;
3. The issue of non-state actors;
4. The desirability of instituting a separate offense under criminal law;
5. The protection against impunity such as issues concerning amnesty, asylum and refuge and statute of limitations;
6. Establishment of jurisdiction;
7. The role of judiciary in the supervision of places of detention;
8. The definition of victims;
9. The extent of the right of the victims.
It must also be said that many of the government delegations maintained that their governments have not had the opportunity to reflect on the various issues and have not come to any conclusions or positions from which they will negotiate. Some of the points made concerned the diversity of criminal systems and the difference between civil and common law approaches. Moreover, some States were mainly in the discussions to defend the status quo of their legal systems as well as practice.
What must be emphasized at this time is that real negotiations on the elaboration of a legally binding instrument to protect persons from disappearance will commence only once the detailed drafting of the specific provisions is undertaken. The challenge to the NGOs is hoe to ensure that the specific draft provisions are relevant and effective. Moreover, there is the continuing challenge not to retreat from currently recognized international law; instead, efforts should be made that present standards are actually enhanced and that a new instrument will have an “added value” in the protection of human rights.
Somebody once said that the devil in negotiations is in the details. It is, indeed, infuriating that human rights standards have to be “negotiated”, in the first place. Nevertheless, as human rights advocates, we owe it to the victims of enforced disappearance to ensure that our principles and commitment to human rights defeat that devil. In the thick and thin of our efforts to build an effective legal regime that will protect all persons from enforced disappearance and from any form of human rights violations, these principles and commitment should be our shield and sword.
