Global, Global Geopolitics, Headlines, Human Rights

HUMAN RIGHTS: Society’s Debt to the Disappeared

Gustavo Capdevila

GENEVA, Oct 8 2004 (IPS) - Although forced and involuntary “disappearances” continue to occur around the world, as evidenced by the 40,000 cases currently under review by a specialised United Nations committee, the international community is dragging its heels in adopting a treaty to combat this heinous crime.

The working group created by the U.N. Commission on Human Rights (UNCHR) to “elaborate a draft legally binding instrument for the protection of all persons from enforced disappearance” concluded a new session of talks Friday in Geneva, although it appears that their task is not likely to be completed by next March, as was initially planned.

The drafting of the document has proven to be more challenging than expected. Federico Andreu-Guzmán, an advisor to the International Commission of Jurists (ICJ), said the talks have been “difficult and arduous.”

Rodolfo Mattarollo, cabinet secretary to the Argentine Department of Human Rights, noted that the negotiations have been particularly complicated because they are taking place within an open-ended group, which allows for the participation of other states in addition to the 53 members of the UNCHR.

Obstacles have arisen because some countries are actually opposed to the creation of a new international instrument and monitoring body, said Andreu-Guzmán.

He said that states like Russia, China and Ethiopia have attempted to bog down discussions on the definitions of legal terms and thereby hinder any real progress.

But there are others who are calling for a precisely worded convention and an independent monitoring committee, he added with more optimism.

Despite delays in the drafting of the document and the hurdles thrown up by some delegations, significant advances have been made.

The Latin American countries, which first proposed this initiative, have gradually garnered the support of European nations, as well as Canada, New Zealand and Australia.

A critical point in the negotiations was the classification of disappearances as a crime against humanity and the inclusion of this concept in the preamble to the treaty. When the working group first met in January 2003, there was strong opposition to this view of disappearances on the part of some of its members.

Now, however, this decision has been resoundingly backed by the participating states, with the “surprising” support of countries like Japan and the United Kingdom, Andreu-Guzmán noted.

Another major stumbling block was the inclusion, in the definition of disappearances itself, of a reference to acts committed by non-governmental agents, such as guerrilla or insurgent groups.

Japan, for example, maintained that non-governmental agents should be given separate treatment in the treaty. The question should be addressed, but not in the very definition of the crime, they said. This was the view that ultimately prevailed, and was even backed by the United States, Andreu-Guzmán reported.

The reports received by the working group participants on the current situation are deeply troubling. Disappearances carried out by governments continue to occur in alarming numbers in all parts of the world, particularly in Asia, but also in Africa, Europe, and North and South America, according to Darko Göttlicher, a member of the Working Group on Enforced or Involuntary Disappearances (WGEID), established by the UNCHR in 1980.

The central work of the WGEID, he explained, is to serve as a channel of communication between the sources of information of alleged disappearances – typically relatives or NGOs – and governments, in order to clarify the fate or whereabouts of disappeared persons.

“Currently, new cases reported to have taken place this year are being submitted to the WGEID in the hundreds,” he said. “For example, between January to September of 2004, 117 cases have been transmitted as urgent appeals to the government of Nepal.”

Hundreds of letters are sent annually by the working group on the more than 40,000 cases currently under review, he added. “Over the past five years, the WGEID has been able to clarify the fate or whereabouts of more than 5,320 disappeared persons, including 837 in 2003.”

The most significant disagreements that emerged in the drafting of the “normative instrument” concerned the form it will actually take, and the body that will be responsible for monitoring its enforcement.

The Latin American countries and some European nations, like Spain, Italy and Greece, advocate the adoption of a convention with the same legal status as the U.N. Convention Against Torture or even the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights.

As for the monitoring body, they propose an autonomous committee, like the ones established for the above-mentioned covenants, made up of independent experts nominated and elected by the signatory states.

However, other countries would prefer that the treaty be reduced to an optional protocol to the Covenant on Civil and Political Rights. The monitoring body would be the same Human Rights Committee that enforces the implementation of the covenant.

The Swiss delegation proposed an alternative option, the creation of a subcommittee that would be attached to the Human Rights Committee but would function independently.

Mattarollo said that Argentina wants the instrument to take the form of a convention, and be monitored by an independent and specially created committee.

The ICJ also believes that a convention with its own monitoring body, such as a committee against forced disappearances, would be preferable.

The Human Rights Committee is already overloaded with work, Abreu-Guzmán commented. It only has the capacity to study the human rights situation in 15 countries a year, and handles barely 30 individual complaints annually, he said.

The working group responsible for elaborating the draft treaty will meet again in January, and then present a report to the next session of the U.N. Commission on Human Rights, which will meet in Geneva in March and April.

However, observers believe it is unlikely that their report will include the final text of the draft treaty, which will probably take at least another year to complete.