1. Introduction
1. The motion for a recommendation on the International
Convention for the Protection of All Persons from Enforced Disappearance
(
Doc. 11830) was referred to the Committee on Legal Affairs and
Human Rights for report on 29 May 2009. At its meeting on 23 June
2009, the committee appointed Mr Christos Pourgourides (Cyprus,
EPP/CD) as rapporteur. This motion is part of the follow-up to the
Parliamentary Assembly’s
Resolution
1463 (2005) and
Recommendation
1719 (2005) on enforced disappearances.
On 6 October 2011, the committee held
a hearing with the following experts:
- Ms Kathryne Bomberger, Head of the International Commission
on Missing Persons (ICMP), Sarajevo;
- Ms Anne-Marie La Rosa, Legal Adviser at the Advisory Service,
International Committee of the Red Cross Legal Division, Geneva;
- Ms Suela Janina, member of the United Nations Committee
on Enforced Disappearances (CED), Ministry of Foreign Affairs, Albania.
1.1. Enforced disappearances and
combating impunity
2. The fight against enforced disappearances is a key
aspect of combating impunity, which was the main subject of the
Assembly debate on the state of human rights in Europe in June 2009,
since enforced disappearances are often accompanied by the impunity
of their perpetrators. This aspect was addressed in the guidelines
adopted by the Committee of Ministers in March 2011 on eradicating
impunity for serious human rights violations (see paragraph 4.1.5
below). At the same time, enforced disappearances generate a serious humanitarian
problem. The terrible, never-ending suffering of the families and
friends of missing persons, who cannot come to terms with the loss
of their loved ones until they know their fate and, in many cultures,
until they have had the opportunity to bury their bodies, is a formidable
obstacle to peace and reconciliation. But we should not allow the
need to alleviate the suffering of the relatives of the missing
to be used as an argument to restrict the mandate of those tasked
with finding burial sites and identifying the human remains found
by excluding the identification of the perpetrators of the killings.
Such restrictions, which exist for example in Cyprus in the framework
of the Committee on Missing Persons (CMP), objectively favour impunity
– but for what purpose? I fully subscribe to the statement Ms Bomberger,
Head of the ICMP, made during our hearing, namely that efforts to
solve the problem of disappearances must be anchored in the rule
of law and human rights; and I note with satisfaction that the ICMP
has had no difficulties in co-operating with the International Tribunal
for the former Yugoslavia (ICTY) by providing testimony, statements
and depositions, and with assisting the prosecution in domestic
war crimes trials.
1.2. Enforced disappearances: a
persistent criminal phenomenon
3. Enforced disappearances remain a common criminal
practice in many regions of the world. As the above-mentioned motion
for a recommendation states, they are also a phenomenon that still
persists in the geographical territory covered by the Council of
Europe, whether it be the territory of its member States or that of
the observer States.
The
up-to-date figures given by the experts at the hearing shocked many
colleagues: of the 40 000 persons that went missing during the conflicts
in the territory of the former Yugoslavia, 14 000 are still unaccounted
for (2 000 from the Croatia conflict, 2 000 from the Kosovo conflict,
and 10 000 from the conflict in Bosnia and Herzegovina). Thousands
are still missing in the North Caucasus region of the Russian Federation,
but also in the
South Caucasus region from the conflicts involving Azerbaijan and
Armenia, and, more recently, Georgia.
4. In its
Resolution
1463 (2005), the Assembly decided to monitor on a regular basis
the progress made by member States in providing protection against
enforced disappearances and to assess after five years whether there
has been sufficient progress in the framework of the United Nations
or whether it would be advisable for the Council of Europe to consider
developing an instrument of its own. The aim of this report, presented
six years after
Resolution
1463 (2005) is: (i) to provide an update on the extent of the problem
in certain member States that are particularly vulnerable to enforced
disappearances; (ii) to analyse the purpose and scope of the 2006
United Nations International Convention for the Protection of All
Persons from Enforced Disappearance (“the UN convention”); and (iii)
to look into whether it is appropriate for the Council of Europe
to draw up a binding European legal instrument on enforced disappearances
in the light of the recent work carried out within the Organisation,
and of the progress made in the framework of the United Nations.
2. Enforced disappearances:
a continuing concern in some Council of Europe member States and
regions that are particularly vulnerable to the phenomenon
5. Since the presentation of the above-mentioned 2005
report, it is disturbing to note the persistence of this humanitarian
scourge in Europe and even a trend towards a worsening of the situation
in some regions.
2.1. Cyprus
6. Since the aforementioned report, there have been
several developments regarding the situation in Cyprus.
2.1.1. Activities of the Parliamentary
Assembly and of the Committee on Missing Persons
7. For its part, the Assembly adopted, on 1 October
2008,
Resolution 1628
(2008) on the situation in Cyprus, in which it particularly
welcomed the recent progress in the work of the Committee on Missing
Persons (CMP). The CMP is a bi-communal body that was set up by
the United Nations in 1981 and whose terms of reference are limited
to the exhumation, identification and return of the remains of missing
persons. After a long period of inactivity, the CMP was reactivated
at the end of August 2004. Under the Exhumation and Identification
programme, launched under the auspices of the CMP, exhumations have
been carried out over the entire island and anthropological analyses
of the remains have been conducted in an anthropological laboratory
set up in the buffer zone for the purpose of identifying these remains.
It also emerges from the relevant
parts of the progress reports regularly drawn up on the United Nations
operation in Cyprus, and submitted by the United Nations Secretary
General to the Security Council, that the work carried out by this body
within the limits of its terms of reference is regarded as positive.
In
its latest progress report dated 31 August 2011, the CMP indicates
that it has so far visited and opened 546 burial sites, analysed
474 sets of remains at its anthropological laboratory, performed
1 369 DNA analyses and identified 300 missing individuals and returned
them to their families: 239 Greek Cypriots and 61 Turkish Cypriots
(out of a total of 1 464 Greek Cypriot and 494 Turkish Cypriot missing
persons). One obstacle to further progress is the fact that the
Turkish military stationed in the north of the island still refuse
to allow the search for and opening of possible burial sites located
in “military zones”, as well as Turkey’s refusal to allow the search
for persons who went missing in 1974 in its own territory, or to
allow access to its relevant military archives.
2.1.2. Recent case law of the European
Court of Human Rights
8. At the judicial level, the execution of the
Cyprus v. Turkey judgment of 10
May 2001 on,
inter alia, the thorny
issue of enforced disappearances is still being examined by the
Committee of Ministers.
In a new Grand Chamber judgment of
18 September 2009 in the case of
Varnava
and Others v. Turkey, concerning disappearances of Greek
Cypriots during the Turkish invasion and occupation of the northern
part of Cyprus, the European Court of Human Rights (“the Court”)
found violations of Articles 2 (right to life), 3 (prohibition of torture)
and 5 (right to liberty and security) of the European Convention
on Human Rights (ETS No. 5, “the Convention”) and clarified various
aspects of its case law relating to its jurisdiction
ratione temporis, compliance with
the six-month rule for filing an application and the continuing
obligation on the part of the Turkish State to conduct an investigation
in order to locate missing persons and clarify their fate. On this
last point, while the Court fully recognises the importance of the
exhumation and identification work and pays tribute to the CMP’s humanitarian
efforts, it considers these measures as insufficient to meet the
obligation under Article 2 of the Convention
to conduct an effective investigation
aimed at determining the cause of death and identifying and punishing
those guilty. It should be noted that the CMP’s mandate does not
include criminal investigations and prosecutions.
2.2. The Balkans
9. As a consequence of the armed conflicts in the Western
Balkans, it is estimated that 40 000 persons went missing. This
number includes the conflicts relevant to Croatia, Bosnia and Herzegovina
and Kosovo.
Today,
two thirds of those missing, or approximately 26 000 persons, have
been accounted for in the region. This number includes approximately
1 800 persons missing from the Croatia conflict (out of 6 000 reported missing),
approximately 2 000 persons from the Kosovo conflict (out of approximately
4 500) and approximately 10 000 persons missing from the Bosnia
and Herzegovina conflict out of an estimated 30 000 persons missing.
The progress made by the governments of the Western Balkans represents
an unprecedented achievement when compared to other countries in
the world affected by large numbers of missing persons from armed
conflicts, crimes against humanity and violations of human rights.
In the region of the Western Balkans, the ICMP has made over 16 000
DNA-led identifications, of which over 13 300 are relevant to the
Bosnia and Herzegovina conflict and over 2 360 relevant to the Kosovo
conflict and over 350 regarding the Croatia conflict. The ICMP’s
use of DNA has yielded remarkable success in the context of the 1995
fall of Srebrenica, where the ICMP has been able to use DNA to identify
6 600 persons and to ascertain that the total number of missing
persons is about 8 100; and in Serbia, where the ICMP was able to
assist Serbia in accounting for 820 persons missing from the Kosovo
conflict who were executed and buried in Serbia in 1999.
10. The approximately 14 000 persons who remain missing will be
more difficult to account for. The ICMP believes that the process
has reached a virtual impasse in Kosovo for both technical and political
reasons. In Kosovo, there is no accurate determination of the total
number missing at the end of the conflict. The ICMP estimates a
total of 4 500 persons, of which almost 2 000 remain missing. A
total of 2 360 have been identified using DNA, but with well over
95% of blood references collected and with a declining annual number
of missing persons located in the last six years it is clear that
there is an urgent need for parties involved in the process to review
all open cases, especially considering the probability of misidentifications.
The ICMP also maintains that further progress on identifications
is virtually impossible without the active involvement of policy
makers from Kosovo and Serbia.
11. The issue of missing persons in the Balkans, especially Kosovo,
still has serious consequences for the maintenance of peace in the
region and for reconciliation between ethnic groups.
The situation in Kosovo was debated
very recently in the Assembly:
the authorities in Pristina and Belgrade
were urged to continue their co-operation with the Working Group
on Missing Persons.
In
his report on inhuman treatment and illicit trafficking in human
organs in Kosovo,
Mr Dick Marty
refers to the fate of numerous ethnic Albanians and ethnic Serbs
who disappeared in Kosovo after the official end of the hostilities,
and who may have been victims of a campaign of revenge, including
against real or imaginary “collaborators” with the Milosevic regime.
The elucidation of their fate is often blocked by a taboo covering
possible crimes committed by members of the “Kosovo Liberation Army”
(KLA) and the reluctance of the Albanian authorities to allow searches
for burial sites on Albanian territory, which they consider as not
having been part of the conflict zone, whilst Mr Marty’s report has
established that KLA fighters moved freely across the Albanian border
and maintained camps on Albanian territory where they also held
prisoners.
12. In Bosnia and Herzegovina, the identification process is now
slowing down as the majority of missing persons have been accounted
for. It is estimated that 1 400 persons remain missing from Srebrenica;
however, owing to the existence of hundreds of secondary mass grave
sites, the recovery of disarticulated body parts of already identified
and buried persons may continue for years. The creation of central
records by the Missing Persons Institute of Bosnia and Herzegovina
will be of enormous help in understanding how to strategically address
the remaining missing persons’ cases in Bosnia and Herzegovina.
In addition, the decision of the State Prosecutor’s Office in Bosnia
and Herzegovina to take over control from local prosecutors to conduct excavations
should have a positive impact in expediting the recovery of the
bodies of missing persons from mass and clandestine graves.
13. The ICMP, which has pioneered since 2000 the process of DNA-led
identifications to address the issue of persons missing from war
and mass violations of human rights, deserves to be congratulated
on its achievements to date, and supported by all States in its
still daunting task to clarify the fate of the 14 000 persons still
missing in the region. The ICMP’s success also shows that co-operation
with efforts to hold to account the perpetrators of enforced disappearances
does not hinder progress in the humanitarian task of clarifying
the fate of as many missing persons as possible.
2.3. The North Caucasus region of
the Russian Federation (especially the Chechen Republic)
14. Already in the 2005 Assembly report on enforced disappearances
it was stressed that the Chechen Republic was affected by the scourge
of enforced disappearances more than any other region of the member States.
Unfortunately,
this dramatic situation has scarcely improved since then.
Resolution 1738 (2010) and
Recommendation
1922 (2010) on legal remedies for human rights violations in the
North Caucasus region, both based on a report drawn up by Mr Dick
Marty,
reveal the extent of the problem:
disappearances of government opponents, journalists and human rights
defenders largely go unpunished, especially in the Chechen Republic,
despite the very large number of judgments of the European Court
of Human Rights finding against the Russian Federation.
The
suffering of the relatives of thousands of missing persons in the
region and the fact that it is impossible for them to find closure
constitute a major obstacle to genuine reconciliation and lasting
peace. In the light of the ICMP’s success in the Western Balkans
region using DNA analysis for identification, it is unacceptable
that, as Mr Marty was told in Grozny in 2010, there is still no
functioning DNA laboratory in the whole of the Chechen Republic.
2.4. The South Caucasus (Armenia,
Azerbaijan and Georgia)
15. The issue of missing persons in Armenia, Azerbaijan
and Georgia after the conflicts in Nagorno-Karabakh, Abkhazia and
South Ossetia has not been resolved and is still causing the missing
persons’ families considerable suffering, while at the same time
adding to the tensions in the region.
Resolution 1553 (2007) and
Recommendation
1797 (2007) on missing persons in Armenia, Azerbaijan and Georgia
from the conflicts over the Nagorno-Karabakh, Abkhazia and South
Ossetia regions are important documents since they put the total number
of missing persons at close to 8 000 and draw up concrete recommendations
to the various players in the region, based in part on the aforementioned
Resolution 1463 (2005).
16. Furthermore, the recent armed conflict in August 2008 between
Georgia and the Russian Federation sparked a humanitarian crisis,
the consequences (including more missing persons) of which are still
being monitored by the Assembly.
2.5. Belarus and Ukraine
2.5.1. Belarus
17. In Belarus, the investigation I conducted on four
high-profile disappearances in 1999/2000 – an investigation that
led to the adoption of
Resolution
1371 (2004) and
Recommendation
1667 (2004) on the situation of refugees and displaced persons in
the Russian Federation and some other CIS countries, directly implicating
senior officials of the regime of Mr Lukashenka – has still not
resulted in the Belarusian authorities launching a serious investigation
into the fate of the missing persons, despite the Assembly’s repeated
calls for them to do so.
The persistent refusal
to investigate these disappearances was subsequently assessed as an
abuse of the criminal justice system in Belarus.
The
Commissioner for Human Rights, Mr Thomas Hammarberg, recently recalled
in this context that these crimes are by no means prescribed.
In
the light of the recognition of the suffering of the relatives of
missing persons as a form of torture and inhuman and degrading treatment
and
of changes in national law in the wake of the implementation of
the Rome Statute of the International Criminal Court, it may be
possible for the judicial authorities in some jurisdictions to prosecute
– even
in absentia – the high
officials which I named as suspects. We should encourage the judicial authorities
of all the member States to avail themselves of all legal opportunities
to hold these persons to account. Let us not forget, however, that
the normal way to proceed would simply be for the Belarusian authorities
themselves to finally prosecute those whose continued impunity is
a permanent stain on the reputation of the country as a whole and
an obstacle to political normalisation.
2.5.2. Ukraine
18. The Assembly adopted
Resolution 1645 (2009) and
Recommendation
1856 (2009), on the investigation of crimes allegedly committed
by high officials during the Kuchma rule in Ukraine: the Gongadze
case as an emblematic example, on the basis of a report by Ms Sabine
Leutheusser-Schnarrenberger.
The
Assembly drew attention to the gaps in the legal investigation and
called for specific measures to identify not only the direct perpetrators
but also the instigators and organisers of the crime committed against
Georgiy Gongadze, a “disappeared” journalist who later turned out
to have been murdered by Interior Ministry officials who had allegedly
received their orders from the minister or even from President Kuchma
himself. Despite a judgment of the Court finding a violation of
Article 2 (right to life) of the Convention, the case is still not
fully elucidated. Some progress was made recently when General Pukach
(who had allegedly been present at the scene of the murder, commanding
the Interior Ministry officials who have already been convicted)
was re-apprehended in July 2009
and
a criminal investigation was opened against former President Kuchma
in March 2011.
But former
Interior Minister Lutsenko, one of the main supporters of the Assembly’s
rapporteur, who carried out important reforms in his ministry and
dismantled the “death squad”, is now in prison in rather worrying circumstances.
2.6. Enforced disappearances and
the fight against terrorism
19. Mention should also be made of the Assembly’s work
on secret detentions and unlawful interstate transfers of detainees.
Cases
of rendition and detention in so-called “black sites”, such as those
described by Mr Dick Marty in his well-known reports, constitute
enforced disappearances when the deprivations of liberty at issue
are not officially recognised or the authorities refuse to inform
the families of what has happened to the person in question and
where he or she is being held. These cases are particularly difficult
to elucidate as they are covered by State secrecy, which is used
to block judicial or parliamentary investigations into such abuses.
3. Purpose and scope of the International
Convention for the Protection of All Persons from Enforced Disappearance
20. As urgently called for by the Assembly in its report
in September 2005, the United Nations General Assembly adopted by
consensus, on 20 December 2006, the International Convention for
the Protection of All Persons from Enforced Disappearance.
3.1. Background
3.2. Ratification status
22. To date,
91 countries have signed the UN
convention and 30 have ratified it (including 35 Council of Europe
member States among the signatories and nine among those having
ratified it).
The
20th ratification necessary for the treaty to enter into force was
by Iraq on 23 December 2010. In view of the importance of the issue
of enforced disappearances, including in Europe, all Council of
Europe member States should become party to the UN convention as
soon as possible. This is indeed one of the objectives of the motion
underlying this report.
3.3. The achievements of the International
Convention for the Protection of All Persons from Enforced Disappearance
23. The UN convention straddles international human rights
law, international humanitarian law and international criminal law.
Its main achievements are as follows.
3.3.1. The recognition of a new subjective
human right (Article 1)
24. Article 1, paragraph 1, provides: “No one shall be
subjected to enforced disappearance”. This right is not subject
to any limitations or exceptions. Paragraph 2 provides that “[n]o
exceptional circumstances whatsoever, whether a state of war or
a threat of war, internal political instability or any other public
emergency, may be invoked as a justification for enforced disappearance”.
Before this convention was drafted, only bans on enforced disappearances
in certain precisely defined circumstances were enshrined in some
international legal instruments with regional application, such
as the Inter-American Convention on Forced Disappearances, or in
international humanitarian law. International humanitarian law –
especially the 1949 Geneva Conventions and their protocols – contains
precise rules aimed at preventing disappearances and at addressing
them efficiently if they do occur.
These rules apply when
disappearances take place in armed conflict, even though some of
these rules continue to produce their effect long after the armed
conflict has ended. These rules do not prohibit disappearances as
such, their aim being mainly to prevent persons from going missing
and to encourage the resolution of cases of disappearances when
they unfortunately occur. Similarly, the Rome Statute setting up
the International Criminal Court (ICC) states that enforced disappearances
constitute a crime against humanity, but only when committed in
the context of a widespread or systematic attack directed against a
civilian population.
3.3.2. An autonomous definition (Article
2)
25. The offence of enforced disappearance is expressly
defined as “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 authorisation, 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”.
26. This definition specifies the constituent elements of the
offence, namely: (1) deprivation of liberty; (2) its attributability
to agents of the State or persons acting with its authorisation;
and (3) a refusal to acknowledge the deprivation of liberty and
concealment of the fate of the disappeared person. The question
of intent was one of the most difficult aspects to deal with during
the negotiation process. The drafters of the UN convention finally
decided to opt for “constructive ambiguity”, with the result that
the text leaves it up to each State to interpret Article 2 as it
wishes,
thus
setting itself somewhat apart from the Rome Statute, whose definition
of enforced disappearances expressly includes the element of
mens rea.
3.3.3. Non-State actors (Article 3)
27. After difficult discussions,
a
compromise solution was adopted also on this issue: immediately
after Article 2, which only mentions the State as the perpetrator
(as in the 1992 declaration and the Inter-American convention),
an Article 3 with the following wording was inserted: “Each State
Party shall take appropriate measures to investigate acts defined
in Article 2 committed by persons or groups of persons acting without
the authorisation, support or acquiescence of the State and to bring
those responsible to justice.”
28. It clearly emerges from the sequence of the two articles that
enforced disappearance as such is in principle an act that must
be attributable to a State. The obligations mentioned are exclusively
incumbent upon the State, to the exclusion of any private entity,
such as armed groups outside the ambit of State authority. The only
obligations are to conduct investigations and “bring those responsible
to justice”. Unfortunately, impunity often prevails. This issue
must be addressed as a matter of priority.
3.3.4. Specific obligations imposed
on States to prevent enforced disappearances and combat impunity
3.3.4.1. Combating impunity
3.4.1.1. Mandatory establishment
in domestic law of a new offence combined with appropriate penalties
29. Aware that the absence of an autonomous criminal
offence would make it impractical to implement certain provisions
of the UN convention, the drafters wanted States to enter into a
commitment to make enforced disappearance an offence under their
domestic criminal law (Article 4). The parties also undertake to bring
the perpetrators of enforced disappearances to justice (Article
3). States must prescribe “appropriate” penalties that take account
of the “extreme seriousness” of the “offence of enforced disappearance”
(Article 7). Aggravating circumstances may in particular be established
in the case of the death of the missing person or the commission
of an enforced disappearance in respect of vulnerable persons (pregnant
women, people with disabilities, etc.); mitigating circumstances
may, however, be established for repentant offenders who assist
in establishing the truth.
3.4.1.2. A wide range of persons
criminally responsible
30. The States parties undertake to prosecute both those
who commit enforced disappearances and anyone who orders or is an
accomplice to or participates in such an offence (Article 6, paragraph
1). The convention also emphasises a superior’s responsibility by
omission (Article 6, paragraph 1.b)
and states in this connection that “no order or instruction from
any public authority, civilian, military or other, may be invoked
to justify an offence of enforced disappearance” (Article 6, paragraph
2) – a principle now well established in international law (see
Article 8 of the Statute of the International Military Tribunal
of Nuremberg).
3.4.1.3. Statute of limitations
(Article 8)
31. The period of limitation with respect to prosecution
must be “of long duration and … proportionate to the extreme seriousness”
of the offence. It begins to run “from the moment when the offence
ceases …, taking into account its continuous nature”. The drafters
of the convention thus drew the necessary conclusions from the continuous
nature of the violation of the right not to be subjected to enforced
disappearance which ends in principle only when the fate of the
disappeared person is elucidated. They also drew the relevant procedural conclusions
from this principle, especially with regard to the jurisdiction ratione temporis of the international courts,
including the European Court of Human Rights (see paragraph 55 below).
3.4.1.4. Fair trial for offenders
(Article 11)
32.
“Any person against
whom proceedings are brought in connection with an offence of enforced disappearance
shall be guaranteed fair treatment at all stages of the proceedings.
Any person tried for an offence of enforced disappearance shall
benefit from a fair trial before a competent, independent and impartial court
or tribunal established by law.”
3.4.1.5. Establishment of criminal
jurisdiction and implementation of the aut dedere aut judicare principle (Articles
9, 10 and 11)
33. After setting out the various traditional bases on
which a State can establish its jurisdiction regarding the perpetrator
of an enforced disappearance (territorial jurisdiction, active or
passive personal jurisdiction), Article 9, paragraph 2, enshrines
the principle of universal jurisdiction, that is to say the State
has jurisdiction to deal with a crime of enforced disappearance
“when the alleged offender is present in any territory under its jurisdiction”,
whatever his or her nationality, the victim’s nationality and the
territory in which the crime was committed. In the latter case,
the aut dedere aut judicare principle
applies: the State must either prosecute or extradite the offender
(Article 11).
3.4.1.6. In-depth and impartial
investigation (Article 12)
34. The competent authorities are required to open an
in-depth and impartial investigation as soon as possible after an
enforced disappearance has taken place. It may be opened in response
to a complaint or proprio motu “(w)here
there are reasonable grounds for believing that a person has been
subjected to enforced disappearance” (Article 12, paragraph 2).
Moreover, “any individual who alleges that a person has been subjected
to enforced disappearance has the right to report the facts to the
competent authorities”, which is a form of actio
popularis. In order to enable this investigation to be
conducted, the State undertakes to ensure that these authorities
possess the necessary powers and resources and “have access, if
necessary with the prior authorisation of a judicial authority,
which shall rule promptly on the matter, to any place of detention
or any other place where there are reasonable grounds to believe
that the disappeared person may be present”. Furthermore, the convention
stipulates that the States parties have an obligation to “ensure
that the complainant, witnesses, relatives of the disappeared person
and their defence counsel, as well as persons participating in the
investigation, are protected against all ill-treatment or intimidation
as a consequence of the complaint or any evidence given”.
3.4.1.7. Enhanced international
co-operation: judicial and humanitarian assistance
35. The UN convention states that, for the purposes of
extradition, the crime of enforced disappearance shall not be regarded
as a political offence. A request for extradition may therefore
not be refused on this ground alone (Article 13). In addition, the
UN convention establishes the principle of enhanced co-operation
between the States parties based on “the greatest measure of mutual
assistance” (Article 14). More generally, it aims to provide assistance
for victims of enforced disappearance and help “in searching for,
locating and releasing disappeared persons and, in the event of
their death, in exhuming and identifying them and returning their remains”
(Article 15).
3.4.2. Preventing the practice
of enforced disappearances (Articles 17 to 22)
36. Apart from the creation of a new substantive human
right (“No one shall be held in secret detention”), the UN convention
lays down a range of procedural guarantees having a preventive purpose.
3.4.2.1. Guarantees relating
to detention
37. The requirement of “officially recognised and supervised
places of deprivation of liberty” includes the maintenance of detailed
and up-to-date official registers and the judicial supervision of
any detention (namely the right to apply for a prompt decision on
the lawfulness of the deprivation of liberty to a court which is empowered
to order the person's release if such deprivation of liberty is
not lawful).
3.4.2.2. Guarantees relating
to the right to information on the detention
38. Access by relatives, lawyers or “any person with
a legitimate interest” to information on the circumstances of the
detention (date, time and place of the detention, any transfers,
the identity of the authority which ordered the detention, etc.)
and on the persons deprived of their liberty (detainee’s state of
health, and, as applicable, the cause of death and the location
of the remains, etc.) as well as measures to provide protection
against any form of intimidation or retaliation due to the search
for this information are also guaranteed (Article 18). Furthermore,
the State party must impose sanctions for delaying or obstructing remedies,
failing to meet the obligation to record any deprivation of liberty
and refusing to provide information.
3.3.5. New rights for the victims
of enforced disappearances
3.3.5.1. A broad definition of the term
“victim”
39. The UN convention states that “victim means the disappeared
person and any individual who has suffered harm as the direct result
of an enforced disappearance” (Article 24, paragraph 1). This is
the first international human rights treaty to recognise as victims
of enforced disappearance not only the missing persons themselves
but also their relatives, who are left in a state of uncertainty
and distress and suffer material difficulties caused by the disappearance.
It thus adopts the approach already privileged by international humanitarian
law.
3.3.5.2. New rights enshrined
3.5.2.1. The right to the truth
and appropriate measures to search for, locate and release disappeared
persons
40. For the first time, the right to be told the truth
about the circumstances of the enforced disappearance, the results
of the investigation and the fate of the disappeared person is explicitly
laid down in an international human rights convention (Article 24,
paragraph 2). Moreover, the UN convention requires States parties
to take all appropriate measures to search for, locate and release
disappeared persons. This new right differs from the right to information
as a preventive measure (families’ right to obtain information about
a detainee), which may be subject to restrictions.
3.5.2.2. The right of victims
to reparation and compensation
41. Based on Article 14 of the International Convention
against Torture,
Article 24, paragraph 4, of
the UN convention requires States to guarantee a right to compensation
that covers “material and moral damages”, the grant of which should
be “prompt, fair and adequate” and may take on different forms,
each of which is explicitly mentioned, although the list is not
exhaustive. This leaves it up to the State to determine the most “adequate”
damages depending on the case, namely: restitution; rehabilitation;
moral satisfaction, including restoration of dignity and reputation;
and guarantees of non-repetition. Furthermore, the State is called
upon to take the appropriate steps to deal with the complex legal
situation brought about by an enforced disappearance, especially
in civil (family and property) law and in matters of social welfare.
3.3.6. A new type of monitoring mechanism:
the Committee on Enforced Disappearances
42. The UN convention establishes a committee made up
of 10 experts “who shall serve in their personal capacity and be
independent and impartial” (Article 26) and are “elected by the
States Parties according to equitable geographical distribution”.
The arrangements for electing experts to sit on the committee are specified
and their term of office is four years, renewable once. The first
election took place on 31 May 2011. The three European members elected
are Mr Emmanuel Decaux (France), Mr Rainer Huhle (Germany) and Ms
Suela Janina (Albania), who also participated in the hearing on
6 October 2011 before the Committee on Legal Affairs and Human Rights.
3.3.6.1. “Traditional” functions of
the CED
43. The committee examines the reports submitted by States
parties on the measures taken to give effect to their obligations
under the UN convention (Article 29) and can issue comments, observations
or recommendations on these reports.
44. The CED can also examine communications from or on behalf
of individuals according to certain admissibility criteria
if the State concerned expressly
recognises its competence by making a declaration to this effect
(Article 31). The CED may also be asked to examine interstate communications
(Article 32). We must encourage all States parties to make the necessary
declarations to recognise the CED’s competence in these respects
in order to give full effect to the UN convention.
Finally,
the CED must submit an annual report on its own activities (Article
36). The convention also states that the CED shall closely co-ordinate
its work with the various specialised agencies of the United Nations
and the treaty bodies instituted by other international instruments,
especially the Human Rights Committee (Article 28).
3.3.6.2. A novel function of preventing
enforced disappearances
45. The Committee on Enforced Disappearances shall also
play an important role in preventing enforced disappearances. For
this purpose, it has been given powers to conduct investigations
and the right to ask questions.
46. The CED may be asked by relatives of a missing person or by
any other individual who has a legitimate interest to take urgent
action to seek and find that person (Article 30). If the complaint
complies with the above-mentioned admissibility criteria,
the CED
will ask the State concerned to supply it with information on the situation
of the person sought. On the basis of the details received, it can
request the State to take “take all the necessary measures, including
interim measures, to locate and protect the person concerned in
accordance with this Convention”. This is reminiscent of the interim
measures which can be issued by the European Court of Human Rights
(Rule 39 of the Rules of Court). The express mention, in the text
of the UN convention, of the power given to the CED to request a
State party to take interim measures is a novel feature.
. The comparatively strong early
warning and urgent action procedure effectively ensures a rapid
and contradictory exchange of information until the case is “resolved”.
It will be important that the CED retains the definition of “resolved”
developed by the Working Group on Enforced and Involuntary Disappearances
(WGEID, see point 3.4 below), which excludes that States can claim
that cases have been “resolved” on the sole basis of compensation
paid to families or of a judicial declaration of death issued without
the consent of the families. The urgent procedure was introduced
in the UN convention in the light of the experience of the WGEID,
whose members had calculated that around 25% of the cases transmitted
under its “urgent action” procedure could be “resolved”, much more
than through the normal procedure involving the sending of communications
by letters when the disappearance has occurred more than two months
before.
47. The CED also exercises a preventive function by carrying out
on-the-spot visits in the event of a serious breach of the UN convention
(Article 33). The convention provides that the CED must inform the
State concerned in writing about its intention to conduct a visit.
If the State agrees, the CED will carry out the planned visit and
subsequently communicate its observations and recommendations to
the State concerned, with no limits related to confidentiality.
It should be noted that the triggering of the country visit procedure
does not require systematic or gross violations, which are dealt
with separately under Article 34 (appeal to the United Nations General
Assembly). Also, during the negotiations on the draft convention,
the wording of Article 33 was amended to allow a visit to “any territory
under the State’s jurisdiction” (rather than the State’s “territory”).
This means that a visit could include a territory that is under
the
de facto control of the
State concerned, for example occupied territories.
48. Finally, the Committee on Enforced Disappearances can issue
urgent appeals to the United Nations General Assembly if it receives
information that enforced disappearances are being carried out on
a widespread or systematic basis in the territory of one of the
States parties to the convention (Article 34). Such practices are
considered as crimes against humanity.
3.4. Relationship with existing
UN instruments dealing with enforced disappearances
49. The United Nations Working Group on Enforced or Involuntary
Disappearances (WGEID)
was established
in 1980 by the then Commission on Human Rights (now the Human Rights
Council). It also monitors the implementation of the 1992 Declaration
on the Protection of All Persons from Enforced Disappearance. It
is a channel of communication between the families and the governments
concerned aiming to ensure that individual cases are investigated
by domestic authorities. It does not directly investigate individual
cases or adopt measures of protection against reprisals and it does
not establish individual or State responsibility.
50. The WGEID’s role is essentially humanitarian, without geographical
or temporal limitations. In contrast, the CED, with its stronger,
quasi-judicial mandate, can only intervene in countries that have
ratified the new UN convention and with regard to disappearance
cases which commenced after ratification.
51. Consequently, the CED will be well advised to co-operate closely
with the WGEID, which has gained valuable experience, in order to
maximise the chances of the families of missing persons of finding
their loved ones. Similarly, the CED should take into account in
its future work the acquis of
the United Nations Human Rights Council and of its predecessor,
the United Nations Commission on Human Rights, which dealt with enforced
disappearance cases within its (“treaty-based”) mandate under the
International Covenant on Civil and Political Rights (ICCPR).
4. The need for a European instrument
providing protection against enforced disappearances
52. In order to assess the need for a new European convention
in this field, it is necessary to review recent developments on
the subject of enforced disappearances and possible further steps
within the system of the European Convention on Human Rights, in
the light of the new UN convention and the remaining issues not yet
settled in this convention.
4.1. Recent developments within
the European Convention on Human Rights system and possible further
steps
4.1.1. The case law of the European
Court of Human Rights
4.1.1.1. Enforced disappearance recognised
as a violation of Articles 2 and 3 of the European Convention on
Human Rights
53. The case law of the European Court of Human Rights
concerning enforced disappearances was last described in 2010 in
Mr Dick Marty’s excellent report on the human rights situation in
the North Caucasus.
I therefore do not need to present
it in detail here. It is clear that enforced disappearance is a
violation of Article 2 (as a threat to or an actual violation of
the right to life of the direct victim) and of Article 3 (as inhuman
and degrading treatment and possibly torture, of the direct victim
and of the family members traumatised by long-lasting uncertainty
about the fate of their loved ones). The possibility for the Court
to find a “procedural” violation of Article 2 or 3 when the applicant
cannot prove the authorities’ direct responsibility, whilst it can
be established that the authorities failed to conduct a prompt and
effective investigation adds to the effectiveness of Articles 2
and 3. The Court’s case law on factual presumptions and even, in
certain cases, on the reversal of the burden of proof, which I have
myself described in an earlier report on the member States’ duty
to co-operate with the European Court of Human Rights,
further
contributes to making Articles 2 and 3 fairly effective instruments for
holding States to account for enforced disappearances.
54. The Court further clarified its case law on enforced disappearances
in
Varnava and Others v. Turkey, a case concerning
nine Greek Cypriots, eight soldiers and one civilian, who all disappeared
in August 1974 during the Turkish invasion of the northern part
of Cyprus. In its judgment finding violations of Article 2 of the European
Convention on Human Rights – the right to life – by Turkey, the
Court clarified important aspects of its case law, including its
temporal jurisdiction and the application of the six-month rule.
4.1.1.2. The extension of the Court’s
temporal jurisdiction (ratione temporis)
55. Turkey did not accept the right of individual application
to the Court until 1987. It raised a preliminary objection calling
on the Court to declare that it lacked jurisdiction to hear the
complaint concerning the alleged failure to comply with the procedural
obligation to carry out an effective investigation after the disappearances in
1974. The Court dismissed this objection, stressing that “the procedural
obligation [to conduct an effective investigation to establish the
whereabouts of the men who had disappeared and determine what had
happened to them] can operate independently from the substantive
limb of Article 2 of the Convention” (paragraph 136), and stated
that this resulted from a crucial distinction between “the obligation
to investigate a suspicious death and the obligation to investigate
a suspicious disappearance” as “the procedural obligation will,
potentially, persist as long as the fate of the person is unaccounted
for; the ongoing failure to provide the requisite investigation
will be regarded as a continuing violation” (paragraph 148). It
added that “the procedural obligation to investigate can hardly
come to an end on discovery of the body or the presumption of death;
this merely casts light on one aspect of the fate of the missing
person” and that “[a]n obligation to account for the disappearance
and death, and to identify and prosecute any perpetrator of unlawful
acts in that connection, will generally remain”. The Court thus
ruled that it had jurisdiction.
4.1.1.3. Compliance with the six-month
rule
56. The Court also ruled on the applicability of the
usual time limit of six months for making an application to it despite
the nature of the disappearances as a continuing violation. “Applicants
cannot wait indefinitely before coming to Strasbourg. They must
make proof of a certain amount of diligence and initiative and introduce
their complaints without undue delay” (paragraph 161). Depending
on the circumstances of the case, the time limit may vary by several
years.
4.1.2. The execution of the Court’s
judgments concerning enforced disappearances
57. The Court’s judgments finding violations of Articles
2 and 3 are binding and must be executed under the supervision of
the Committee of Ministers (Article 46). In my own earlier report
on the execution of the Court’s judgments, I already described the
difficulties arising in this respect.
The
Committee of Ministers has rightly established the principle that
when the Court has found a procedural violation of Article 2 or
Article 3, the individual measures required to redress the violation
include the duty to carry out, albeit belatedly, any investigations
that were wrongfully omitted earlier. The problem is that the authorities
on the ground remain reluctant, even after the Court has found a
violation, to carry out effective investigations and to follow the
trail of evidence that may lead to establishing an official’s responsibility.
The
Council of Europe Commissioner for Human Rights, following his visit
to Russia in May 2011, highlighted the continuing structural and
logistical obstacles to effective investigations.
The task of the authorities is objectively
made more difficult by the passage of time since the events leading
to the disappearance of the victim, given the time needed for the exhaustion
of internal remedies, for the procedure before the Court in Strasbourg,
and for the execution procedure before the Committee of Ministers.
“General measures” designed to prevent future disappearances or
to improve the institutional set-up in order to favour more effective
investigations can also play a positive role and should be pursued
in parallel with efforts aimed at elucidating the case at issue.
4.1.3. Possible interim measures by
the Court in cases of enforced disappearances
58. Under Rule 39 of its Rules of Court, the Court can
“at the request of a party or of any other person concerned, or
of its own motion, indicate to the parties any interim measure which
it considers should be adopted in the interests of the parties or
of the proper conduct of the proceedings before it” and “may request information
from the parties on any matter connected with the implementation
of any interim measure it has indicated”. Under Rule 40, the Court
may, “without prejudice to the taking of any other procedural steps
and by any available means, inform a contracting party concerned
in an application of the introduction of the application and of
a summary of its objects” (urgent notification of an application).
In my earlier report on member States’ duty to co-operate with the
Court, I already encouraged the Court to make creative use of these
provisions in order to protect applicants threatened with reprisals
for having taken their case to Strasbourg, following the example
of the Inter-American Court for Human Rights.
In
the event of an enforced disappearance, valuable time may indeed
be saved through interim measures urging the authorities to take certain
investigative steps or even just drawing their attention to a dangerous
situation. But I am sceptical as to whether it would be wise, in
the long run, to place an additional burden on the Court, which
is already facing a difficult challenge in terms of numbers of applications.
Interim measures in cases of
enforced disappearances are a useful, potentially life-saving stop-gap
until a dedicated instrument to deal with the issue of enforced
disappearances is put in place, but in my view they cannot replace
such an instrument indefinitely.
4.1.4. An additional protocol to the
European Convention on Human Rights on enforced disappearances?
59. Another possibility to make better use of the Convention
system for the fight against enforced disappearances could be a
new additional protocol to the Convention, on enforced disappearances.
Such a protocol, laying down a new human right not to become a victim
of enforced disappearance and recognising the “right to the truth”
of relatives of missing persons, would in my view be a false good
idea. Besides the practical difficulties of negotiating such an
instrument and having it ratified by a sufficient number of States within
a reasonable period of time, such a protocol would not really change
the fundamentally retrospective nature of the Convention mechanism.
If the protocol were to limit itself to codifying the Court’s existing
case law, it may well hinder rather than promote its further development,
and if it were to go beyond, the advances would only be applicable inter partes (namely to the States
which have signed and ratified the protocol) and the very existence
of the protocol would risk being turned into an a contrario argument against further
advances of the case law based on the present text of the Convention.
4.1.5. Guidelines of the Committee
of Ministers of the Council of Europe on Eradicating Impunity for Serious
Human Rights Violations
60. Under the authority of the Steering Committee for
Human Rights (CDDH), the Committee of Experts on Impunity drew up
guidelines on eradicating impunity for serious human rights violations.
These guidelines are mainly drawn from the case law of the European
Court of Human Rights and the work of the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT). They were adopted by the Committee of Ministers
Deputies at their 1110th meeting (30-31 March 2011). As combating
enforced disappearances is a key aspect of the fight against impunity,
and vice versa, these guidelines are relevant particularly in the
light of the procedural guarantees designed to protect persons deprived
of their liberty (Principle V), the State’s duty to investigate
(Principle VI), the involvement of victims in the investigations,
especially the information given to the missing person’s family
(Principle X), and command responsibility and the following of orders
from a superior (Principle XVI). The adoption of these guidelines
by the Committee of Ministers must be warmly welcomed, not least
in the perspective of the Assembly’s earlier report prepared by
Ms Herta Däubler-Gmelin on the need to eradicate impunity.
From the perspective of the assessment
of whether there is a need for a new Council of Europe convention
on enforced disappearances, the guidelines’ main weakness is the
lack of a dedicated implementation mechanism and the fact that they
are not legally binding.
4.1.6. Preliminary conclusions on
the possible role of the European Convention on Human Rights system
in fighting enforced disappearances
61. The above assessment of the adequacy of the existing
and possible additional tools within the Convention system for the
fight against enforced disappearances is fairly pessimistic, especially
as regards the problem of the passage of time inherent in the remedies
under the Convention. Of course, I do not wish to advocate throwing
up our hands and accepting the de facto impossibility
to clarify the fate of so many missing persons and the de facto impunity of so many perpetrators
of enforced disappearances. But the instruments under the European
Convention on Human Rights, even as interpreted and applied dynamically
by the Court and the Committee of Ministers and strengthened by
the Guidelines on Eradicating Impunity for Serious Human Rights
Violations, and even if supplemented by an additional protocol on
enforced disappearances, may simply not be the best possible instrument
to deal with the scourge of enforced disappearances. The Convention
is an excellent instrument to react to enforced disappearances ex post facto, but it may well need
to be supplemented by a specific legal instrument which lays a stronger
emphasis on prevention and rapid reaction. This said, it is indispensable
that the Court and the Committee of Ministers avail themselves of
all existing legal avenues in order to combat enforced disappearances
until a new, dedicated legal instrument can be negotiated and enter
into force.
4.2. The key aspects to be taken
up in a future European instrument to combat enforced disappearances
62. In
Resolution
1463 (2005) and
Recommendation
1719 (2005), the Assembly set out the following key aspects that,
in its opinion, should to be taken into account in any binding legal
instrument on enforced disappearances: (i) a precise definition
of enforced disappearance that is sufficiently broad to cover non-State players;
(ii) recognition of the relatives of the missing person as independent
victims and the affirmation of their “right to the truth”; (iii)
effective measures against impunity; (iv) appropriate preventive
measures; (v) a full right to reparation, including restitution,
rehabilitation, satisfaction and compensation; and (vi) a strong
international monitoring mechanism, including a procedure for urgent
intervention.
63. At first glance, the 2006 United Nations convention deals
with most of the concerns expressed by the Assembly:
i. It
provides an autonomous definition of the offence of enforced disappearance
and recognises a new substantive human right not to be subjected
to enforced disappearance under any circumstances.
ii. It recognises the right of “any individual” (which therefore
includes the relatives of the missing person) who has suffered harm
as the direct result of an enforced disappearance to claim victim
status and expressly enshrines “the right to know the truth”.
iii. It provides for a series of effective measures to combat
the impunity of offenders: creation of a separate criminal offence
in domestic law with appropriate penalties, an extensive list of
persons that can be held criminally responsible, a long period of
limitation that takes account of the continuing nature of enforced disappearances,
recognition of the principle of universal jurisdiction and the aut dedere aut judicare principle,
the State’s obligation to conduct an impartial and in-depth investigation
and to provide protection against any reprisals, etc.
iv. It lays down a range of potentially effective preventive
measures (ban on secret detention, procedural guarantees associated
with detention, right to information on detention, training of law
enforcement officials, etc.);
v. It requires States to recognise a right to full reparation
and compensation in their domestic law.
vi. It establishes a new type of monitoring mechanism; however,
its effectiveness in practice still needs to be verified, as it
only started working in November 2011.
4.3. The remaining lacunae of the
UN convention
64. Some shortcomings in the UN convention can already
be discerned, which could be detrimental to full protection against
enforced disappearances.
4.3.1. A narrow definition of enforced
disappearance
4.3.1.1. The UN convention does not
include in the definition the responsibility of non-State actors
65. Enforced disappearance as such is viewed in the UN
convention as an act solely attributable to a State, and the obligations
under the convention therefore lie only with the State, excluding
any private entity. However, faced with political difficulties,
the convention drafters provided in a
separate article (Article 3) for obligations to be imposed on States
in connection with enforced disappearances committed by non-State actors.
This goes some way towards preserving essential objectives, but
it does not impose any duties on non-State actors themselves. Enforced
disappearances orchestrated by such groups as self-styled rebel
forces, private militias or even private business enterprises trying
for example to terrorise a local population into abandoning their
land are still not covered.
4.3.1.2. The UN convention is silent
on the question of intent
66. The “constructive ambiguity” adopted by the convention's
drafters on the question of intent raises a serious issue to which
a clear response will have to be given: can or must a possible binding
European legal instrument avoid introducing in the definition of
enforced disappearance a subjective element (that is to say, the
element of intent), which is usually part and parcel of any serious
criminal offence? Is it possible in practice to facilitate the proof
of such a subjective element in such a way that it does not make
any effective prosecution illusory? In any event, the threshold
for triggering the States’ duty to protect and investigate under
a human rights treaty such as the UN convention does not need to
be, and should not be, set as high as the threshold triggering individual
criminal responsibility, as in the case of the Rome Statute of the
ICC or in national criminal law.
4.3.2. The absence of a prohibition
of amnesties
67. This is one of the principal omissions of the UN
convention compared to the Assembly’s 2005 “wish list”: no provision
in the convention prohibits an amnesty or any similar measure for
perpetrators of enforced disappearances, which seems to be a retrograde
step compared with the present state of international law for serious
violations of human rights and international humanitarian law.
In
our opinion, impunity is precisely an obstacle, not a possible condition
for lasting reconciliation, which must be based on the establishment
of the truth and individual rather than collective responsibility
for serious crimes.
4.3.3. The absence of provisions relating
to jurisdictional and other immunities
68. It emerges from the debates that, owing to strong
opposition from the United States, which argued that such a provision
would prevent the granting of certain transactional immunities,
the UN convention contains no article on immunities, even though
the granting of immunities, just as amnesties, may create obstacles
to criminal prosecution, thus contributing to the impunity of perpetrators.
4.3.3.1. The absence of provisions on
granting asylum to persons who perpetrate or are involved in enforced
disappearances
69. The UN convention is silent on the question of a
prohibition on granting asylum or refugee status to perpetrators
of enforced disappearances. Moreover, no link is established with
the 1951 Geneva Convention on the Status of Refugees, Article 1-F
of which contains an exclusion clause for persons “with respect
to whom there are serious reasons for considering” that they have
committed serious crimes (a crime against peace, a war crime, a
crime against humanity, a non-political crime outside the country
of refuge) or “acts contrary to the purposes and principles of the
United Nations”.
4.3.4. Possible use of military tribunals
70. The wording of Article 11 of the UN convention, unlike
other relevant international instruments on this subject,
fails to rule out the use of military
tribunals to try perpetrators.
4.3.5. The limits on the work of the
Committee on Enforced Disappearances
71. Whilst we cannot yet judge the effectiveness of this
body, which will only begin its work in November 2011, certain limits
are already clear:
72. Firstly, the committee has an uncertain future as it has been
set up for a trial period of four to six years, after which a conference
of the States parties will assess its operation and decide whether
it is appropriate to entrust the monitoring of the convention to
another body (Article 27). Article 27 is a compromise formula between
those States that did not see the need for any new monitoring body
at all and others that did. The “sword of Damocles” hanging over
the CED may act either as additional motivation for its members,
as our expert and CED member Ms Janina believes, or as a freeze
on any real deployment of resources until the final decision on
the CED’s future is taken.
73. Secondly, the committee will have limited jurisdiction
ratione temporis and therefore cannot deal with serious
situations which already exist and which in fact prompted the drawing
up of the UN convention. I consider this as a particularly serious
weakness; in this respect, the UN convention falls behind the case
law of the European Court of Human Rights as developed in
Varnava and Others v. Turkey (see
paragraph 55 above). This handicap makes it difficult for the newly
elected CED to reach its cruising speed in time for the review under
Article 27. But it remains to be seen how the CED will define the
“commencement” of an enforced disappearance, and whether it may
have some leeway when the time of the “commencement” is unknown
or otherwise unclear. It should also be noted that this is only
a jurisdictional limitation, concerning the competences of the CED,
and does not affect the substantive part of the UN convention, which
means that the States’ obligations apply also to disappearances
that commenced before the entry into force of the UN convention
for the State concerned, as long as it remains unresolved.
5. Conclusion
74. In the light of the above analysis of recent and
possible future developments within the Council of Europe, in view
of the strengths and weaknesses of the UN convention and of the
hearing with experts we had at the meeting of the Committee on Legal
Affairs and Human Rights on 6 October 2011, my conclusion is that the
Council of Europe should follow a three-pronged approach:
75. Firstly, we must urge all Council of Europe member States
that have not yet done so to sign and ratify the United Nations
International Convention for the Protection of All Persons from
Enforced Disappearance, which at any rate represents a major step
forward for the protection of all persons against the scourge of enforced
disappearance. The Council of Europe’s member States which are also
States parties to the UN convention and the members of the CED elected
on behalf of these States should also be encouraged to implement
the UN convention in such a way as to realise its full potential.
This includes passing and implementing legislation which settles
the ambiguities left in the text of the UN convention by way of compromise
(in particular as regards duties placed on non-State actors and
the subjective element of the crime of enforced disappearance) on
the side of maximising protection, and making the declarations foreseen
in Articles 31 and 32 accepting that the CED deal with individual
and interstate applications. The newly elected CED should be encouraged
to interpret the UN convention in such a way as to enable the CED
to intervene in the most rapid and effective way in order to assist
as many victims of enforced disappearance as possible. It should
also be encouraged to co-operate closely, from the start, with the
existing United Nations treaty-based (Human Rights Council) and
non treaty-based mechanisms (in particular, the WGEID, which continues
to play an important humanitarian role).
76. Secondly, we must invite the Committee of Ministers to launch
the process of negotiating a new European convention against enforced
disappearances in the framework of the Council of Europe. I am fully aware
of the fact that it may take a certain time, and that it will be
an uphill struggle to ensure that the future European convention
is stronger than the UN convention. But we owe it to the victims,
past and future, of the horrendous crime of enforced disappearance
that we at least try. Also, from a more pragmatic point of view, launching
the preparation of a new convention is an effective way of placing
the issue of enforced disappearance back on the political agenda,
and of keeping it there for some time. We heard during the hearing with
our experts how the institutions working on disappearances and missing
persons issues, such as the ICRC worldwide, the ICMP in the Western
Balkans, or the CMP in Cyprus, require constant political support
in order to be able to carry out their work – in particular in order
to gain unhindered access to all potential burial sites and to obtain
the resources needed to carry out exhumation and identification
work. In our recommendation to the Committee of Ministers, we should
not fail to specify the issues that we expect the future convention
to resolve, in line with the Assembly’s 2005 recommendation, at
least as far as Europe is concerned, namely:
- to include in the definition of enforced disappearances
the duties and responsibilities of non-State actors;
- to drop any subjective element (intent) as part of the
crime of enforced disappearance which would risk making prosecutions
illusory;
- to place limits on amnesties or jurisdictional and other
immunities;
- to foresee a strong monitoring mechanism that also includes
preventive functions, which would have temporal jurisdiction also
over cases of enforced disappearances that are ongoing at the time
of entry into force of the new instrument.
77. Thirdly, we must encourage the European Court of Human Rights
and the Committee of Ministers to make the best possible use of
existing legal avenues under the European Convention on Human Rights
system to fight against enforced disappearances. This includes the
application and further strengthening of the Court’s case law on
procedural violations of Articles 2 and 3, on factual presumptions
and the reversal of the burden of proof in appropriate cases, and
interim measures and the urgent notification of applications (Rules
39 and 40 of the Rules of Court). This also includes continued attention
by the Committee of Ministers, in supervising the execution of relevant
judgments, to “individual measures”, ensuring that each case of
suspected enforced disappearance is effectively investigated, and
to “general measures” providing for appropriate preventive action.
78. This three-pronged approach is reflected in the draft resolution
and recommendation presented above, for which I solicit your support.