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International Convention Against Enforced Disappearances Taking Effect

by Human Rights Watch, December 22, 2010

While the convention responds to a substantial gap in the law – the absence of a treaty to address the multiple violations of human rights that make up enforced disappearances – it is also based on firmly established standards of customary international law...

The convention establishes a significant body of legal obligations to prevent disappearances, including prohibitions on secret detention, a requirement that anyone detained must be held in an officially recognized and supervised facility, and ensuring absolute rights to habeas corpus and to obtain information about detainees.

The Convention against Enforced Disappearance, which takes effect on December 23, 2010, should strengthen international efforts to end this horrific practice, Human Rights Watch said today. The treaty should advance justice for victims and accountability for those responsible, Human Rights Watch said.

The International Convention for the Protection of All Persons from Enforced Disappearance enters into force one month after it is ratified by 20 nations. On November 23, Iraq became the 20th country to ratify the treaty and two others have since done so. The convention defines an enforced disappearance as occurring when authorities deprive an individual of liberty and then refuse to provide information regarding the person's fate or whereabouts.

"Enforced disappearances inflict unbearable cruelty not just on the victims, but on family members – who often wait years or decades to learn of their fate," said Aisling Reidy, senior legal adviser at Human Rights Watch. "Putting this landmark treaty into effect is immensely important, but to end this practice, every country is going to have to recognize that it may never abduct people and hide them away."

Relatives of the disappeared campaigned relentlessly for the Convention against Enforced Disappearance, which both elaborates on the prohibition against disappearances and recognizes the rights of victims' families to truth and a remedy. The governments of Argentina and France provided diplomatic leadership for the convention to gain the necessary international support, Human Rights Watch said.

Enforced disappearances constitute an international crime, prohibited in all circumstances. They may form the basis for prosecutions for war crimes or crimes against humanity, and a disappearance triggers an obligation to investigate and prosecute. Although international law has long recognized their illegality, new disappearances continue across all regions. Governments have also routinely failed to effectively investigate and provide information on the fate of those previously disappeared, which constitutes a continuing violation.

Many late 20th century civil armed conflicts included enforced disappearances, and the practice has continued into the past decade, including in counterterrorism operations since the September 11, 2001 attacks. New cases have been reported in Chechnya in Russia and other parts of the North Caucasus, in addition to the thousands of cases outstanding since the 1990s that have not been properly investigated.

In Pakistan, hundreds have disappeared since 2001, while the Bush administration in the United States disappeared dozens of "ghost prisoners" – individuals held in secret detention centers, including in Europe. There have been at least 30,000 disappearances in Sri Lanka since the late 1980s; hundreds have been reported in the Philippines and Thailand; and Indian security forces were implicated in 4,000 to 10,000 disappearances in Kashmir in the 1990s.

In the Middle East, many disappearances have occurred over the past decades in Algeria, Libya, Syria, Lebanon, Iraq, and Yemen. In Latin America, where a number of countries are parties to the convention, thousands of families still await information on the fate of loved ones who have disappeared and justice for the perpetrators.

"The persistence of disappearances is a stark reminder of how much remains to be done, both under the new treaty and as a human rights priority for countries where the problem of disappearances is most serious," Reidy said.

Background

The International Convention for the Protection of All Persons from Enforced Disappearance was adopted on December 20, 2006. When it was opened for signature on February 6, 2007, 57 countries signed immediately. The 22 countries that have ratified the convention thus far are: Albania, Argentina, Bolivia, Brazil, Burkina Faso, Chile, Cuba, Ecuador, France, Germany, Honduras, Indonesia, Iraq, Japan, Kazakhstan, Mali, Mexico, Nigeria, Paraguay, Senegal, Spain, and Uruguay.

While the convention responds to a substantial gap in the law – the absence of a treaty to address the multiple violations of human rights that make up enforced disappearances – it is also based on firmly established standards of customary international law. The convention sets out the right not to be subjected to enforced disappearance and requires nations to prohibit and criminalize this practice in their national legislation. Treaty provisions cover the criminal responsibility of subordinates and superiors, national and international preventive measures, extradition, and international cooperation.

The convention establishes a significant body of legal obligations to prevent disappearances, including prohibitions on secret detention, a requirement that anyone detained must be held in an officially recognized and supervised facility, and ensuring absolute rights to habeas corpus and to obtain information about detainees.

Furthermore, the convention recognizes the right to truth and reparation for victims and their families. It also contains provisions to protect children of victims of enforced disappearance from being wrongfully taken by authorities, given false identities, and adopted.

The convention provides for the creation of a committee to monitor the convention's provisions and to consider individual and inter-state complaints. The committee would also be able to take emergency actions if needed, to undertake field inquiries, and to bring situations of widespread and systematic disappearance to the attention of the United Nations General Assembly.

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UN: 'Disappearances' Treaty a Major Advance

Countries Should Push for Treaty's Worldwide Adoption and Ratification

HRW, September 25, 2005

The adoption of an international treaty against forced disappearances at the United Nations is a great step forward in the fight against this crime, said Amnesty International, the International Commission of Jurists, the International Federation of Human Rights and Human Rights Watch.

The four human rights organizations called on all U.N. member states to ensure that the International Convention for the Protection of All Persons from Enforced Disappearance is quickly adopted by consensus in the U.N. General Assembly. All countries should ratify the treaty as soon as possible.

The four organizations thanked the delegations that contributed to the adoption of this treaty in Geneva on Friday and particularly wished to congratulate Ambassador Bernard Kessedjian of France, chairman of the U.N. working group that drafted the treaty, for his tenacity, engagement and tireless work on the part of the victims.

This Convention represents an extremely important development in the fight against forced disappearances and for the protection of victims and their families. On the whole, the adopted text addresses the concerns of the four organizations, but could be subject to their detailed comments at a later time. Today, the groups would like to express their satisfaction with regard to the following points:

First, the Convention is an autonomous treaty endowed with its own treaty-monitoring committee. This choice recognizes both the suffering of victims of forced disappearances and their families’ tireless fight to locate them. It will also guarantee the treaty’s effectiveness in the future, even after reforms of the U.N. human rights system.

The Convention also constitutes a great step forward in the historical development of international law on the issue, and it is based on firmly established standards in customary law. The treaty also recognizes a new right not to be subjected to forced disappearance and requires states to prohibit this practice under their national laws.

Moreover, the Convention recognizes that, in certain circumstances, forced disappearances can be considered a crime against humanity. Consequently, such crimes can be prosecuted in international criminal proceedings through the response of the international community.

The Convention establishes an ensemble of legal instruments on the national and international level that will allow states to effectively prevent forced disappearances. The mandatory jurisdiction of the treaty’s committee in the case of urgent appeals is particularly important in this regard.

The Convention will be an invaluable tool in the fight against impunity for perpetrators of forced disappearances. The four human rights organizations also believe that the treaty provides a solid platform for the future, and they will watch to ensure that it is interpreted in an evolutionary way. The treaty should reflect developments in international law in the fight against impunity, specifically those that reject amnesty for crimes against humanity and the prosecution of human rights abusers by military tribunals alone.

Amnesty International, the International Commission of Jurists, the International Federation of Human Rights and Human Rights Watch would like to pay homage to the families of the disappeared, who have inspired our organizations with their lasting courage and unshakable hope over the years. Since the families keep hope alive, we cannot fail to do the same.