The International Convention for the Protection of All Persons from Enforced Disappearance, adopted on 20 December 2006 by the UN General Assembly, was signed in Paris on 6 February 2007 by the representatives of 57 countries. It came into force on December 23th 2010 after the 20th ratification.
FIACAT has launched, with the help of the International Coalition Against Enforced Dispappearances an international advocacy campaign aimed at states authorities to urge them to sign, ratify and implement the Convention.
Outcome of many years of work by governments, human rights organisations and the families of the "disappeared", the Convention defines "enforced disappearance", recognises it as a crime under international law and commits States to arrest on their territory and to surrender, extradite or prosecute those responsible for such practices.
All the States Parties to the new Convention must take preventative measures, including a total ban on secret detention and the right to habeas corpus for the relatives or lawyer of a person who has disappeared.
It also affirms the right of victims to know the truth, and all the States Party to the new Convention must grant them the right to obtain reparation, along with prompt, fair and adequate compensation.
The new Convention concerns not only those who have disappeared but also those who have suffered from disappearances, such as the members of their families. This Convention requires special measures to be taken to protect children subjected to enforced disappearance and those whose parents have disappeared.
A Gap Filled In
Up to now, under international law someone who has disappeared, and hence in most cases his or her family, has been able only to:
Appeal to the Working Group on Enforced or Involuntary Disappearances and refer to the Declaration on the Protection of All Persons from Enforced Disappearances adopted by the General Assembly in 1992, or
Appeal to the Committee against Torture if the State concerned has recognised its competence and if there is a presumption of ill treatment, or
Appeal to the Human Rights Committee if the State concerned has recognised its competence under the First Protocol, alleging multiple violations of the Covenant on Civil and Political Rights (Article 6 on the right to life, Article 7 on the right not to be subjected to torture, Article 9 on the right not to be subjected to arbitrary arrest or detention, etc.).
Now, this specific Convention will enable all aspects of enforced disappearance, relating to both protection and prevention, to be taken into account, and provide for a "visible" body with the appropriate competence.
Enforced disappearance is defined as the deprivation of liberty, in whatever form, by "agents of the State or by 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"; in addition, it places such persons outside the protection of the law. The link between this last point and the others may be interpreted as either a consequence or a condition.
Cases of enforced disappearance by agents other than those of the State (groups acting beyond the control of the State) are not included, since only States can be bound by a treaty; it is, however, made clear that the State may not remain passive and must take measures to investigate and bring those responsible to justice.
As regards this crime, which cannot be justified by any exceptional circumstances, the State has a primary duty to ensure that enforced disappearance constitutes an offence under its criminal law, the punishment for which is commensurate with its extreme seriousness.
If the crime - which, according to the Convention, constitutes a crime against humanity if it is "practised on a widespread or systematic basis" - is not declared imprescriptible by the State, it is specifically stated that the term of limitation for criminal proceedings must be "of long duration" and, in any event, is not to commence until the moment when the offence of enforced disappearance ceases.
Furthermore, rather than referring explicitly to universal competence, the Convention details the State’s role in prosecuting those responsible, which does not exclude the possibility of extraditing them (especially as the argument that disappearance is a political offence is specifically ruled out) or surrendering them to an international criminal tribunal; in addition, the Convention strongly recommends mutual legal assistance between States in connection with criminal proceedings.
Owing to the serious misgivings of some delegations, the Convention has no clause banning amnesty laws or pardon for guilty parties. This being so, the 1992 Declaration, and Article 18 in particular, allow for objections to such measures.
The protection of victims
The Convention specifically outlaws one key feature of any enforced disappearance: "secret detention". It sets out clearly all the guarantees and information needed for the deprivation of liberty to be considered legal, in order to prevent the deprivation of freedom surreptitiously turning into the disappearance of the person concerned, including after he or she has been set free. That release must thus be verifiable.
As well as making clear to them their obligations, the training of law enforcement personnel must include making them aware that they cannot be punished when they refuse to carry out an order for enforced disappearance or inform their superior of plans for such action. On the contrary, they have a crucial part to play in prevention.
Finally, the Convention demands cooperation between states whenever necessary for the assistance of persons who have disappeared, to locate and release them or identify and return their remains.
The rights of victims
The Convention identifies as victims both the person who has disappeared and those, including his or her relatives, who have "suffered harm as the direct result of an enforced disappearance". It recognises "the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person" and the right to obtain reparation, covering restitution, rehabilitation, restoration of dignity and reputation and guarantees of non-repetition.
In order to prevent a tragedy such as that which affected the children of persons who had disappeared in Latin America, who were taken away with them or born in captivity and then adopted under a false identity by military families, an article in the Convention forbids the wrongful removal of children from their families, as well as the falsification of their civil status.
The Committee on Enforced Disappearances
Once 20 States have ratified the Convention and it thus comes into force, an independent committee of ten experts will be elected.
Its mandate has been meticulously defined:
To examine State reports; an initial report followed by additional information upon request;
To take urgent action, which is an innovation for two reasons: this may be at the request of "any person having a legitimate interest" and it is not subject to a declaration of acceptance;
To examine individual complaints made by or on behalf of persons who have disappeared, and inter-State complaints, but only provided that the State specifically declares its acceptance and a priori only for cases of disappearance which occur after the Convention enters into force;
To undertake visits, with the prior agreement of the State concerned;
To bring a matter to the attention of the General Assembly if there are well-founded indications of disappearances being practised on a "widespread or systematic basis", another innovation intended to seek action from the General Assembly under its prerogatives when faced with a crime against humanity;
To make an annual report to the General Assembly.
It will cooperate with the other bodies such as the Committee on Human Rights and the Working Group on Enforced or Involuntary Disappearances, to which appeal can still be made in the case of States not party to the Convention.
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