Enforced disappearance: UN Convention "a major achievement" that brings new hope
The new UN Convention against enforced disappearance was adopted by the United Nations General Assembly this week. In an interview for the website, ICRC legal adviser Cordula Droege explains the convention and talks about the difference this landmark treaty can make to the victims of enforced disappearance and their families.
Overall, what does this convention address?
The convention is the first universally binding treaty that defines enforced disappearance as a human rights violation and prohibits it. Enforced disappearance is defined, in short, as the abduction or deprivation of liberty of a person by state authorities, followed by the denial of those authorities to disclose the whereabouts or fate of the person. In order to prohibit enforced disappearance, the convention has four main aspects:
Combating impunity – The convention puts an obligation on states to bring enforced disappearance offenders to justice. They must do so not only with regard to persons who commit enforced disappearances on their own territory, but also in cases of alleged offences in other jurisdictions: in those cases states have to either prosecute or extradite the alleged offender, so that no one can escape justice.
Prevention – The convention provides for a number of procedural safeguards so that people don't go missing: people deprived of liberty have to be kept in an official place, to be registered, to have all their movements registered. Most importantly everyone deprived of liberty must be allowed contact with the outside world, especially to communicate with their family and counsel, and the family and counsel have a right to information on the detention and whereabouts of the person. Given the organization's long experience in prevention, the ICRC was very involved in the drafting of these guarantees.
Rights of victims – This is the first convention that recognizes that the victims of enforced disappearances are not only the disappeared themselves but also their relatives. It acknowledges the right of the families to know the fate of their relatives, and also recognizes that victims of enforced disappearance have a right to reparation for the wrong that was done to them.
Enforcement – The convention establishes an international committee of ten independent experts to monitor compliance . These experts will review reports by states and can also receive individual complaints. The convention also foresees a'habeas corpus'procedure by which relatives and other interested persons who fear that a person has been subjected to enforced disappearance can seize the international committee directly and if the complaint is substantiated the committee will ask the state to search for and locate the missing person.
Ayacucho, Peru. National association of families of persons missing, detained or held hostage in areas under a state of emergency.
Who else was involved in the drafting of the convention?
Initially some Latin American associations of families of victims of enforced disappearance demanded an international convention in 1981. It then took twenty-five years to enter and go through the United Nations machinery. States were, of course, the main actors of the negotiations, since they will be bound by the convention. However, it is very important to note that family associations were present throughout the drafting, not only from Latin America, but also from other continents and the fact that they were present in the room during the drafting ensured that the final document, while not fulfilling all their expectations, is a strong treaty.
What does this convention bring in terms of novelty to other international legal instruments already available?
It's the first convention that explicitly prohibits enforced disappearance. Up until now, enforced disappearance had only been seen as a violation of certain rights in existing treaties, such as freedom from torture, the right to liberty or the right to life. But enforced disappearance is more than just the sum of these different aspects. It is characterized by the specific aspect of denial – denying the abducted person's very existence, denying families information on their relatives. This aspect is recognized in the convention because it sees enforced disappearance as a violation in itself. Moreover, there are a number of new binding norms in the text tha t did not exist before in any human rights treaty.
Will this convention help in preventing enforced disappearances, in practical terms?
In practical terms an international treaty can only ever help enforce human rights if and when it becomes implemented into national law and practice. So the treaty on its own will not suffice. What now needs to happen is ratification and then implementation. Implementation means two things: on the one hand, states have to enact national legislation so as to have the legal tools to apply the convention. For example, states have to make enforced disappearance a crime in their national law, otherwise they can't prosecute offenders. Secondly, states have to take practical measures such as training their officials and, very importantly, systematically bring to justice the perpetrators. This requires political will. The convention is an objective international legal yardstick that will help to provide a basis to combat enforced disappearance where there is the will to do so.
Yerevan, Armenia. Mothers with pictures of missing sons.
How are families who have experienced enforced disappearance welcoming this convention? Is there any hope it will have a deterring effect on countries or groups who use enforced disappearance as a weapon of war?
As I mentioned, there are some family associations that have been asking for this convention since 1981 and they are, of course, celebrating this extraordinary achievement. But then of course there are many victims of enforced disappearances and families who are very remote from the international legal scene and for those persons and their families only the implementation of the convention will make a difference. Will it have a deterring effect? Again, the convention in itself is not enough, unless states implement it seriously. That said, an international enforcement mechanism like the future committee on enforced disappearances set up by the convention, to which people can bring complaints beyond the state to an international body, can also hopefully make a difference.
Are there states who oppose this convention?
Some states were reluctant about the convention during the drafting and some states have made statements to the effect that while they accept the convention they will interpret it in certain ways that are in conformity with thei r national law. But what counts is that the convention was adopted by consensus, which means that no state raised its voice against it. The resolution adopting the convention had supporting states from all continents, so there is reason to be optimistic.
So states will not dare publicly oppose this convention?
I think it's very difficult for a state to oppose a treaty banning enforced disappearance, which is simply ethically unjustifiable. The real test is, however, which states will ratify the convention. It will be a matter of doing enough public communications work and campaigning so that states are sufficiently convinced to ratify the convention.
Are you optimistic that all states that support the convention will ratify it?
Yes, let's be optimistic, but it won't happen straight away. Some states have already acknowledged that it will take some time because they have to first adjust their national laws, which is a very legitimate concern. But let's not wait too long.