HUMR5132 Human Rights Law in Context. Enforced Disappearances

Transcription

1 HUMR5132 Human Rights Law in Context Enforced Disappearances

2 Overview Introduction Definition Scope of the problem International efforts before 2006 The law The underlying human rights problems The 2006 convention Other instruments International humanitarian law The closure Presumption of death

3 Definition the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law Art. 2 CED, Art. 7.2.i ICC, DED preamble, Art. II IACFD

4 The problem First recorded use: Nazi Germany, 1941, the Nacht und Nebel decree Post WWII: Latin American dictatorships in the 1960 s/-70 s, later a global problem 1978: First reference to the term enforced disappearances in UN: GA res. 33/173 Impossible to know the scope. Amnesty: hundreds of thousands of people Latin America worst? Around 90,000 cases. But affects also Europe (Russia, Cyprus, Turkey ), Africa (Algeria, Morocco, Zimbabwe ), Asia (Pakistan, India, China ) WGEID: 53,337 cases from 1980 to 2010, but dramatic underreporting is presumed

5 Important international milestones 1978: UNGA resolution 33/ : Commission on Human Rights and WGEID : Drafts of legal instrument 1992: UNGA resolution 47/133, the Declaration on the Protection of all persons from Enforced Disappearance 1994: The Inter-American Convention on Enforced Disappearance of Persons 2006: International Convention for the Protection of All Persons from Enforced Disappearance For details, see

6 Working Group on Enforced or Involuntary Disappearances Established by CHR res. 20 (XXXVI) (1980): to examine questions relevant to enforced or involuntary disappearances of persons. Now a special procedure under Human Rights Council Mandate (HRCouncil Res 7/12): Humanitarian Monitoring of DED Methods of work: Urgent procedures Standard procedures Has considered more than 50,000 cases

7 THE LAW THE UNDERLYING HUMAN RIGHTS PROBLEMS

8 The multiple rights approach Enforced disappearances violate a range of independent human rights IACtHR, Velásquez Rodríguez: The forced disappearance of human beings is a multiple and continuous violation of many rights IACommHR, Garcia Franco: the consequence of an enforced disappearance is to be denied every essential right deemed to inhere in the very fact of being human IACFD, preamble: violates numerous non-derogable and essential human rights Before the 2006 Convention, only the IACFD had established freedom from enforced disappearances as an independent human right recourse had to be (and still has to be) had to other rights

9 The right to life DED Art. 1.2: Enforced disappearance violates or constitutes a grave threat to the right to life HRC GC6: State obligation to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life.

10 The right to life (ctd.) IACtHR, Velásquez Rodríguez (1988): The practice of disappearances often involves secret execution without trial This is a flagrant violation of the right to life. ECtHR, Timurtaş (2000): Whether the failure on the part of the authorities to provide a plausible explanation as to a detainee's fate, in the absence of a body, might... raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on concrete elements, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody Chechnya, South-East Turkey: when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. Reality: A disappearance may constitute an a priori violation of the right to life, even in the absence of a body

11 The right to liberty and security Enforced disappearances are, per definition, arbitrary detention. DED Art. 1.2: An act of enforced disappearance constitutes a violation of the right to liberty and security If violation of other provisions can t be established, the right to liberty and security may still be violated In principle instantaneous. In practice?

12 The right to liberty and security (ctd.) IACtHR, Velásquez Rodríguez: The kidnapping of a person is an arbitrary deprivation of liberty. ECtHR, Kurt (1998): the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5 HRC, Rafael Mojica (1991): The right to liberty and security may be violated in disappearance cases, even without evidence of the arrest or the abduction

13 The prohibition against torture DED Art. 1.2: An act of enforced disappearance constitutes a violation of the right not to be subjected to torture. IACtHR, Velásquez Rodríguez: Prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment but other cases say that isolation and incommunication are not per se inhuman treatment ECtHR: Enforced disappearances do not constitute violations per se of Article 3

14 The prohibition against torture (ctd.) Two aspects: 1. The disappeared person is the victim Evidence of ill-treatment is required 2. The disappeared person s relatives are victims The effect of the disappearance on the relatives may constitute independent violation of the right IACtHR, Blake (1999) ECtHR, Timurtaş and many others

15 The right to recognition as a person DED Art. 1.2: An act of enforced disappearance constitutes a violation of the right to recognition as a person before the law Inter-American: Apparently differing views between IACtHR (no violation) and IACommHR (violation) HRC: Recognised that the right is affected, but violation has not been established

16 The right to know the truth More problematic Legal basis? Scope? Two aspects 1. Individual knowledge 2. General knowledge HRC, Quinteros (1981): the author has the right to know what has happened to her daughter, violation of ICCPR Art. 7 (inhuman treatment) Recognised by the WGEID in 1981, see now General Comment on the Right to the Truth in Relation to Enforced Disappearances Now: An express legal basis in the 2006 Convention

17 The right to a remedy Access to justice Reparation Obligation to provide adequate compensation Transitional justice second hour

18 Some special questions relating to children s rights Several aspects: 1. A child is disappeared 2. A child loses one or both parents and may be adopted as a consequence 3. A child is born by a mother who is forcefully disappeared

19 THE LAW THE 2006 INTERNATIONAL CONVENTION FOR THE PROTECTION OF ALL PERSONS FROM ENFORCED DISAPPEARANCE

20 Adoption and current status 2001: CHR instigated formal negotiations Adopted by UNGA Entry into force: (after 20 ratifications) Today: 36 parties, 91 signatories

21 The general obligation of States Article 1: No one shall be subjected to enforced disappearance Non-derogable right Definition in Article 2: agents of the State or authorization, support or acquiescence of the State Article 3 expands the scope: Duty to investigate and prosecute acts committed by other persons i.e. kidnappings; further reading: C.M. Bailliet, «Towards Holistic Transnational Protection», 38 Denver J Int L (2010) Article 23: Training

22 The key obligation: Criminal responsibility Article 4: Domestic criminal law, take the necessary measures to ensure that enforced disappearances constitute an offence under its criminal law Article 5: International criminal law crimes against humanity See also ICC Statute Art. 7.1.i and 7.2.i. Article 6: Direct responsibility and superior responsibility

23 The key obligation: Criminal responsibility (ctd.) Article 7: An obligation to establish appropriate penalties taking into account the crime s extreme seriousness Article 8: 1. No prohibition against statutory limitations, but strong limitations; 2. Right to an effective remedy Articles 10 and 11: Duty to take into custody and to prosecute Article 25: Particular rules pertaining to children

24 Reporting mechanisms Article 12: A right to report incidents of enforced disappearance Not limited to persons with a legitimate interest Also a duty to investigate ex officio

25 Secret detention Article 17: No one shall be held in secret detention An obligation to keep registers Article 21 gives rules pertaining to release Article 22 provides sanctions

26 Access to information Article 18: Access to information Limited to persons with a legitimate interest Articles 19 and 20: Limitations and restrictions to this right Article 24: The right to know the truth

27 Supervisory mechanisms The Committee on Enforced Disappearances Article 26, membership State reports, Article 29 Individual requests for urgent action, Article 30 Individual communications, Article 31 Opt-in States already done so: Albania, Argentina, Austria, Belgium, Chile, Ecuador, France, Germany, Mali, Montenegro, the Netherlands, Serbia, Spain, Uruguay

28 Supervisory mechanisms (ctd.) State complaints, Article 32 Opt-in Same States as under Article 31, plus Japan Committee visits, Article 33 Article 34, special procedure in cases of widespread or systematic violations Article 35: The Convention is only applicable to disappearances which commenced after the entry into force of the Convention

29 Other international instruments The 1992 Declaration most likely represents customary law The 1994 Inter-American Convention Monitored by the IACommHR ICC Statute Art. 7.1.i: Enforced disappearances are crimes against humanity ICCPR, ECHR, ACHR, ACPHR: The multiple rights approach

30 International humanitarian law Applies to international and non-international armed conflicts, but also rules for post-conflict situations Treaty law: GC IV art. 26, dispersed families AP I arts Art. 32: The right of families to know the fate of their relative Art. 33: Obligation to search for missing persons after the end of active hostilities Art. 34: Rules pertaining to the remains of deceased persons Customary law: ICRC Customary Law study, rule 98: Enforced disappearance is prohibited Both IACs and NIACs Includes a duty to investigate

31 THE PERIPHERY PRESUMPTION OF DEATH

32 The need for closure A problem with regard to all missing and disappeared persons: How can the case be closed? CoE: a fair balance must be struck between the interests of missing persons and of those with a legitimate interest, particularly as regards property and inheritance rights, pension and life insurance rights, the right to enter into a new union (remarriage, registered partnership or similar union existing in certain member states), legal affiliation and parental rights

33 International human rights vs. national law Different consequences of a presumption of death Human rights: A condition to find a violation of the right to life Domestic law: Domestic legal rights and obligations Human rights bodies: Concrete assessment, taking into account all circumstances of the case WGEID: As a general principle, no victim of enforced disappearance shall be presumed dead over the objections of the family.

34 International conventions 1950 Convention on the declaration of death of missing persons, in force from 1952 to Convention relating to the establishment of death in certain cases (the Athens Convention) Declaration of death in cases where the body of a missing person can t be found, but where death is certain Ratified only by 5 States

35 The 2009 Council of Europe recommendation to member States Recommendation CM/Rec(2009)12 of the Committee of Ministers to member states on principles concerning missing persons and the presumption of death Principle 1: A declaration of presumed death of the missing person may be issued if, in the light of all the circumstances of his or her disappearance: a. death can be taken as certain; or b. it is reasonable to conclude that the death of the missing person is likely; or c. although the missing person s death is uncertain, his or her disappearance cannot be reasonably attributed to any cause other than death.

36 Recommended further reading: M.F. Pérez Solla, Enforced Disappearances in International Human Rights (McFarland, 2006) Lisa Ott, Enforced Disappearance in International Law (Intersentia, 2011) Contact information: Kjetil Mujezinović Larsen Associate Professor, the Norwegian Centre for Human Rights Phone: