ENFORCED DISAPPEARANCE: UN CONVENTION "A MAJOR ACHIEVEMENT" THAT BRINGS NEW HOPE
Cordula Droege
International Committee of Red Cross, Switzerland
Dec 21 2006
The new UN Convention on 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.
f/htmlall/convention-enforced-disappearance-interv iew-201206
Cordula Droege ©ICRC 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.
©ICRC/B. Heger/pe-e-00005 Ayacucho, Peru. National association of
families of persons missing, detained or held hostage in areas under
a state of emergency.
Ayacucho, Peru. National association of families of persons missing,
detained or held hostage in areas under a state of emergency.
©ICRC/B. Heger/pe-e-00005 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 that 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.
©ICRC/B. Heger/pe-e-00004 Yerevan, Armenia. Mothers with pictures of
missing sons.
Yerevan, Armenia. Mothers with pictures of missing sons. ©ICRC/B.
Heger/pe-e-00004 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 their 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.
–Boundary_(ID_DVa66IJvpmIOIqSCv3Ba5g)–