Asian Federation Against Involuntary Disappearances

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REPORT ON INTERNATIONAL LOBBYING

YEAR-END REPORT

Asian Federation Against Involuntary Disappearances
Asian Federation Against Involuntary Disappearances
Asian Federation Against Involuntary Disappearances
Asian Federation Against Involuntary Disappearances
Asian Federation Against Involuntary Disappearances
Asian Federation Against Involuntary Disappearances

International Lobby:

A convention Protecting Persons from
Enforced Disappearances – An Imperative
by Mary Aileen Diez-Bacalso¹

CALLING FOR AN INTERNATIONAL CONVENTION: A UNIFIED AND COLLECTIVE VOICE

More than 20 years have passed since the Latin American Federation of Associations of Relatives of Disappeared-Detainees (FEDEFAM) began the work to achieve an international treaty protecting persons from enforced or involuntary disappearances. The couple of decades never diminished the drive of families of the disappeared in Latin America to achieve a new treaty that guarantees protection of people from this scourge so that never again will this occur. The passage of time has kept the passion ever-burning in their hearts – a passion worthy of commendation. In the halls of the United Nations, they echo the unified voice of the voiceless desaparecidos - which deserves the listening ears of the United Nations.

            Martha Vasquez, representative of FEDEFAM to the United Nations inter-sessional open-ended working group for a draft convention protecting people from this malady of enforced disappearances, powerfully appealed to the United Nations to hasten the process “ for the sake of our desaparecidos and for the future of your children. “

            The crime of enforced disappearances violates practically all human rights. It is a very serious offense which affects the direct victims, their families, the community and the greater society. No less than an international convention with a strong monitoring body is imperative because of the strong symbolic value that the latter brings, conveying a message of the seriousness of the matter, raising global awareness and consequent action to stop the practice, thus, largely contributing to the prevention. The report of the independent expert, Mr. Manfred Nowak proves the limitations of the existing mechanisms of prevention of this abominable crime and the utmost necessity of an international mechanism for protection. Having themselves experienced the horror of disappearances, FEDEFAM does not want the phenomena to recur in the future.

            In recent years, enforced disappearances are no longer an exclusive phenomena of Latin America. It is unfortunate that these have spread to other continents of the world. The United Nations Working Group on Enforced or Involuntary Disappearances (UNWGEID), for example, reported that Asia has the highest number of cases reported during the last couple of years, which even prompted it to hold its 75th session in Bangkok, Thailand – the first time to be held outside of Geneva and New York. Thus, the Asian Federation Against Involuntary Disappearances (AFAD) closely cooperates with FEDEFAM and other international organizations in their unified voice to lobby for the adoption of a Convention on the Protection of All Persons From Enforced or Involuntary Disappearances.

            Since the establishment of the United Nations Inter-sessional Open-Ended Working Group for a Draft Legally-Binding Normative Instrument for the Protection of All Persons from Enforced or Involuntary Disappearances, federations and associations of families of the disappeared have consistently made their unified voice heard at the United Nations. In a message of His Excellency Bernard Kessedjian to AFAD, in its book entitled “ Healing Wounds, Mending Scars,” he said: “ I pay tribute to the families of victims and their associations, such as the Asian Federation Against Involuntary Disappearances (AFAD), which tirelessly remind the world of the disaster that constitutes the disappearance of a loved one.“

As a part of the over-all lobby strategy, in November 2004, AFAD joined with FEDEFAM and RADIF (African Network Against Involuntary Disappearances) in a tour to eight European capitals, e.g. Berlin, Dublin, London, Paris, Rome, Helsinky, Geneva, Amsterdam to knock at doors of government foreign offices asking for support to the Convention. The tour was organized by Linking Solidarity. In what came out to be an appeal to the minds and the hearts, it turned out to be quite positive as it was able to change the position of the governments of Germany and Finland in favor of the Convention while making some openings with the rest of the other governments. It was also a venue for projecting the situations of the three different continents.

STATUS OF THE NEGOTIATIONS

        The fifth official meeting of the United Nations Inter-sessional Open-ended Working Group to Elaborate a Draft Legally-binding Normative Instrument for the protection of all Persons from Enforced or Involuntary Disappearances held its meeting on January 30 – February 13 2005. The debate, ably chaired by French Ambassador Kessedjian and attended by about UN member-states, international NGOs and associations of families of the disappeared revolved around key issues mentioned below.

            The Definition and the Inclusion or Non Inclusion of Non-State Actors
The Chairperson’s text has the following definition: Enforced disappearance is considered to be the deprivation of a person’s liberty, in whatever form, 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 a 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. “
The issue of the inclusion or non-inclusion of non-state actors in the future instrument was debated upon. The Russian delegation insisted that non-state actors be treated in the same manner as state actors. In this regard Russia insisted that non-state actors, with no connection whatsoever to the state apparatus, must be included in the definition of enforced disappearance, or else no reference to the nature of the perpetrators be made.

            Latin American states, which explicitly and implicitly admitted their dark history of enforced disappearances and organizations of families of the disappeared, opposed any reference to non-state actors in the instrument. For them, enforced disappearance carried out by or with the acquiescence of the state is a distinct offense requiring specific measures. Other delegations opposed inclusion of non-state actors on the basis that only states can violate human rights.

            There was an agreement to include a reference to non-state actors elsewhere in the instrument starting with the Chairperson’s proposal:

1. Each State Party shall take the necessary measures to ensure that enforced disappearance, as defined in article 1, constitutes an offense under its criminal law.

2. Each State Party shall take comparable measures when the acts defined in article 1 are carried out by persons or groups of persons acting without the authorization, support or acquiescence of the State.

            With this development, it is unlikely to happen that there would be no reference to non-state actors. But organizations of families of the disappeared believe that never should this be included in the definition because the mere mention of the possibility of individuals to carry out enforced disappearances would create confusion with the generic offense of abduction. An international treaty creates and imposes obligations on states and not on individuals. To arrive at consensus, a possible compromise was reflected upon, i.e. mentioning non-state actors only in as far as it is the duty of the State to prevent such acts, to investigate them and to sanction those found responsible for them.

The Element of Intention

            The phrase in the definition, i.e. “which places such a person outside the protection of the law” prompted some delegations to consider that this part of the definition represents an element of the definition of enforced disappearance. In their view, to constitute an act of enforced disappearance, the perpetrators must intend to place the victim outside the protection of the law. Without this element of intent, the detention may be, in fact unlawful, or arbitrary, but it would not constitute an enforced disappearance.

            For Latin American delegations, the phrase “which places such a person outside the protection of the law” is just an end result of any situation where a person is deprived of liberty and officials thereafter refuse to acknowledge the deprivation of liberty or conceal the fate or whereabouts of the person. As such, in their view, it is unnecessary to prove that the detaining state, or its agents, had any particular intention to put someone outside of the protection of the law, for the purpose of establishing that a state’s responsibility. Nor can domestic law authorize the detention of a person followed by concealment of his fate or whereabouts. In their view, to add the element of intention restricts the definition and would present serious difficulties of proof in proceedings against perpetrators, thus reinforcing impunity.

            The Working Group accepted some ambiguity in a constructive way as a compromise. On this basis, the text originally proposed by the Chairperson – “which places such a person outside the protection of the law” was accepted with a certain ambiguity being intentionally reinforced.
Organizations of families of the disappeared, however, believe that the issue of including intentionality places a heavy burden of proof on the families of the disappeared.

National Security Vis-à-vis the Right to Information

            There exist two articles in the draft obliging states to provide information about detained persons. One article concerns provision of information to international or national authorities. Another article concerns provision of information to members of the family of a detainee, to legal counsel and to other interested persons.

            Some delegations mentioned that the right to know may, in some exceptional cases, be restricted if such information can jeopardize the privacy and security of the person deprived of liberty and can endanger national security or may impede the investigation process. This issue was strongly supported by the delegations of the United States, China and Russia.

            For organizations of families of the disappeared, such as AFAD, there should never be in any exceptional cases in as far as the respect of the right to information is concerned. The issue of privacy is not at all applicable in the issue of enforced or involuntary disappearances because in many cases, those who were victimized by enforced disappearance even shouted their names during the act of abduction in order for their identity to be known. Information is very basic to prevent disappearances because its absence has caused a number of cases of enforced disappearances.

            The issue of national security as a possible restriction to the basic right to information is never acceptable to organizations of families of the disappeared in the sense that in many contexts, a huge number of disappearances were executed in the guise of national security. Such belief was supported by many state delegations.

The form of instrument and its corresponding mechanism of enforcement

            The debate centered on whether the new instrument be an Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) or a separate treaty. Some delegations favored giving new responsibilities and mandate on the existing Human Rights Committee while others wanted the creation of a new specialized treaty body. Earlier proposals to add members to the Human Rights Committee were not much discussed, considering the difficulty of reopening the ICCPR for amendment. Cost estimates prepared showed no significant difference in cost between the two possibilities. Still, no agreement had been reached as to the nature of the instrument or the identity of the enforcement mechanism.

            A number of delegations accepted the Chairperson’s proposal that states parties would be required to file a comprehensive initial report, but would not have to file regular periodic updates (the enforcement mechanism would instead have the ability to request subsequent reports on an ad hoc basis.) Some suggested that, if the Human Rights Committee took on the new mandate, the States Parties’ already-required periodic reports under ICCPR could include sections on implementation of the future instrument.

            Delegations also generally approved of the enforcement mechanism having the ability to issue “emergency requests” for information and protection, in suspected cases of enforced disappearance. Some delegations were concerned with a possible overlap with the existing work of the United Nations Working Group on Enforced Disappearances (UNWGEID). The latter’s representative, however, was quick to indicate that it too supported the idea.

            Furthermore, there was a general support that the enforcement mechanism will be tasked to conduct fact-finding missions, including country visits. There was also general support for an individual complaints or communications procedure, but some delegations believed that such procedure should be optional.

            There was a proposal to include an article specifically authorizing the enforcement mechanism to refer instances where it believed enforced disappearance was being practiced “on a widespread or systematic basis in the territory” to the UN Secretary General who would then take appropriate action within the general framework of the United Nations, which is giving a report to the Security Council for referral to the International Criminal Court or for Security Council sanctions. But it was rather controversial. The confidentiality in the mechanism’s dealings with States Parties was equally controversial.

THE URGENT TASK AT HAND

            During the 61st session of the United Nations Commission on Human Rights, on the Item 11 on Civil and Political Rights wherein the issue of enforced disappearances falls under, His Excellency Ambassador Bernard Kessedjian presented the most recent result of the January-February 2005 session of the working group and proposed for another meeting in September 2005. His work was lauded by many state and NGO delegations supporting the Convention.

            FEDEFAM has persevered for a couple of decades to lobby for its adoption and eventual ratification by governments. While realistic of the existing impediments to its immediate adoption in the near future, we are also optimistic that in September, a consensus could be reached. As His Excellency Kessedjian puts it in his message published in the AFAD book, entitled “ Healing Wounds, Mending Scars,” : “ We think about all the victims, about their fight that we share, about their hope that we do not want to disappoint anymore, and we know we need to meet their expectations at last. “

            If FEDEFAM was able to persistently work for two decades, there should be no reason for us not to sustain our lobbying efforts at all levels in the next five months so that once and for all, the United Nations can finally give all the disappeared and their families what they truly deserve – an international treaty for protection with an independent monitoring body to ensure enforcement so that enforced or involuntary disappearances will finally be erased in the face of the earth. “ Seize the day. Seize the hour.”

1Mary Aileen Diez-Bacalso is a Filipino through and through, but claims that her name is actually Irish in origin. this perhaps manifests her highly cosmopolitan bent, having traveled to Europe, Africa, Latin America and other parts of Asia in her continuing advocacy for justice and redress for the disappeared and the attainment of truth. She is currently the Secretary-General of the Asian Federation Against Involuntary Disappearances (AFAD) and has been in the human rights movement since the early 1980s.