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RIGHTS: UN Draft Treaty on Forced Disappearance Completed in Record Time

Gustavo Capdevila

GENEVA, Sep 23 2005 (IPS) - A new legal guarantee for all of the world’s citizens, the right to not be subjected to forced disappearance, was established in a draft international convention adopted this week by a United Nations working group.

The draft International Convention for the Protection of All Persons from Forced Disappearance, approved by the working group in Geneva, was created in response to the troubling evidence gleaned over recent years that forced disappearance remains an all too common practice.

Since 1980, U.N. agencies have received reports of some 50,000 cases of forced disappearance in over 90 countries.

The incidence of this crime rose sharply in Latin America in the 1970s and 1980s, when tens of thousands of people were “disappeared”. In Argentina alone, between 10,000 and 30,000 people – depending on the source of the estimate – fell victim to this practice during the 1976-1983 military dictatorship.

Today, the countries with the most disturbing rates of forced disappearance are Nepal and Colombia, according to the U.N.

The U.N. draft convention was completed in record time, over the space of less than three years. The first session of the working group appointed to draft the new legally binding instrument took place in January 2003.

The working group chairman, Bernard Kessedjian of France, said that a young woman assisting in this task told him that her faith in the U.N. was revived after the agreement was reached.

“The U.N. still gives us reason to dream,” she declared, alluding to the recent criticisms that the global forum has drawn.

The document defines forced disappearance in the context of an international treaty for the first time, and classifies it as a crime against humanity.

It also establishes the right to know the truth, by granting the power to obtain information on what happened to the victims.

The convention contains legal innovations, such as the adoption of a new mechanism for urgent action in the search for disappeared people.

Rodolfo Mattarollo, the undersecretary of human rights in Argentina, referred to this measure as an “international habeas corpus.”

Jurist Horacio Ravenna of the Argentine Permanent Assembly for Human Rights commented that the draft convention also makes an invaluable contribution to the future of humanitarian law by establishing the ability to appeal to the U.N. General Assembly in cases of mass forced disappearances.

This function will be carried out by a 10-member committee specifically created to monitor the implementation of the convention. As a result of this initiative, the U.N. system for monitoring compliance with international human rights treaties will now have a total of eight specially mandated bodies.

The others are the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination Against Women, the Committee on the Rights of the Child, the Committee Against Torture, and the Committee on Migrant Workers.

The draft convention includes provisions in the event of the adoption, as part of the ongoing U.N. reforms, of the initiatives promoted by current High Commissioner for Human Rights Louise Arbour to combine all of these committees into a single body.

The decision to create a new body specifically responsible for monitoring the new convention constitutes just recognition of the suffering of the victims of forced disappearance and the tireless struggle of their families and loved ones to find them, said Olivier de Trouville of the International Federation of Human Rights Leagues (FIDH).

The existence of this committee serves as a future guarantee of effectiveness, even in the event of the aforementioned reform of the treaty monitoring system, he maintained.

“This totally innovative procedure will help save lives,” predicted Patrick Rice, an activist representing human rights organisations on several continents, like the Latin American Federation of Associations of Families of Disappeared-Detainees (FEDEFAM), the “We Remember” Foundation from Belarus, and the Humanist Committee on Human Rights (HOM) from the Netherlands.

“It is no less important that the new convention establishes very important guarantees as to the prohibition of secret detention, which also is of special relevance as a fundamental human rights standard in all counter-terrorism activities,” he added.

Furthermore, the convention clearly establishes the irrevocable right of families to recover the remains of their loved ones, Rice told IPS.

Associations of relatives of the disappeared, human rights organisations and legal groups unanimously endorsed the convention.

As a whole, it successfully meets the expectations of non-governmental organisations, said de Frouville, who was also speaking on behalf of Amnesty International and the International Commission of Jurists (ICJ).

FEDEFAM activist Loyola Guzmán said she would have preferred the omission of certain references contained in the convention.

Nevertheless, she said, it is fundamentally a clear, direct and coherent instrument to combat forced disappearance, which is why her group is “very happy with its approval.”

Rice, an Irish-born former priest now based in Argentina, referred to a few of the criticisms made by NGOs with regard to the final text.

“We deeply regret the absence from the text of the principle expressly prohibiting amnesties or grace or pardon laws for perpetrators of enforced disappearances and their accomplices,” he said.

“We also regret that in the criminal prosecution of cases of enforced disappearance the principle is not established that military tribunals are in no way to be considered appropriate for that task,” he added.

Nevertheless, Rice said on behalf of the organisations he represents that “we are really enthusiastic about this new instrument.”

>From a historical point of view, the new convention represents a major achievement. The adoption of an international treaty on disappearances was first discussed at the Paris Colloquium of 1981, commented Mattarollo.

Two of the participants in that colloquium, French jurist Louis Joinet and Mattarollo himself, went on to actively participate in the entire process that began in 1992 with a U.N. declaration against forced disappearance and culminated in the newly approved convention.

Another major landmark in this international legal process was the adoption by the Organisation of American States (OAS) of the Inter-American Convention on Forced Disappearance of Persons, which entered into force on Mar. 28, 1996.

The OAS convention defines forced disappearance as a crime against humanity, and deems it to be a continuing or ongoing offence as long as the fate or whereabouts of the victim have not been determined.

It further establishes that this crime is not subject to statutes of limitations, and prohibits the use of the excuse of due obedience to superior orders or instructions, as well as the application of privileges, immunities, or special dispensations.

The treaty also expressly prohibits the invocation of exceptional circumstances such as a state of war, the threat of war, internal political instability, or any other public emergency to justify the forced disappearance of persons.