No impunity for enforced disappearances
Checklist
for effective implementation of the International Convention for the Protection
of All Persons from Enforced Disappearance
“I will
never give up”, I am determined to find Prageeth. I still believe that he is
alive.” Sandya Eknaligoda.[1] |
The crime of enforced disappearance was invented
by Adolf Hitler in his Nacht und Nebel Erlass (Night and Fog Decree) issued on
7 December 1941.[2] Since that date,
hundreds of thousands of persons have been the victim of this crime. Sadly, the
commission of this crime saw a resurgence in Latin America in the 1950s and then it spread
around the world.
Enforced disappearance remains one of the worst
human rights violations. As stated in Article 1 of the Declaration on the
Protection of all Persons from Enforced Disappearance:
“Any act of enforced disappearance places the
person subjected thereto outside the protection of the law and inflicts sever
suffering on them and their families. It constitutes a violation of the rules
of international law guaranteeing, inter alia, the right to recognition as a
person before the law, the right to liberty and security of the person and the
right not to be subjected to torture and other cruel, inhuman or degrading treatment
or punishment. It also violates or constitutes a grave threat to the right to life.”
Enforced disappearance is a crime under
international law that too often results in impunity. It is a violation of the
person who has been disappeared. Very often the disappeared are never released
and their fate remains unknown. Therefore it is also a continuing violation of
human rights of their family members who are not able to learn the truth about
their whereabouts. In a number of countries around the world Amnesty
International has documented how witnesses of enforced disappearances and
relatives of the disappeared persons are harassed, ill-treated and intimidated
and how they are often not able to obtain access to justice and reparation.
Furthermore, enforced disappearance has a
particular impact on women and children. Wives, mothers and children are the
ones who often bear the consequences of the enforced disappearances and who are
the most affected persons.[3]
In addition, when they are subjected to disappearance themselves, they may be
targeted for sexual and other forms of violence.[4]
Amnesty International has been calling for all
states not only to sign and ratify the Convention, but also to take effective
steps to implement it in law and practice. States must guarantee the right of
any person not to be subjected to enforced disappearance and the rights of
victims to justice and to reparation.
This paper is similar to others that the
organization has published which aim at providing guidance to states in
implementing human rights treaties, such as the Rome Statute of the International
Criminal Court (Rome Statute). It is also a helpful tool to civil society in participating
in the drafting of implementing legislation or in commenting on draft implementing
legislation.[5] Indeed, Amnesty
International recommends that states parties and states contemplating
ratification of the Convention involve civil society, including women and
women’s organisations, in the drafting of implementing legislation. The
involvement of civil society should take place at the earliest possible stage
and it should be conducted in a transparent manner, such as membership in
inter-agency task forces or working groups with the mandate to draft
implementing legislation.
Amnesty International emphasizes that states
parties must implement the Convention not only in law, but in practice, including
the adoption of a long-term, comprehensive plan that involves establishment of
effective training programs for law enforcement and other personnel, and, in
some instances, amendment of treaties or adoption of new ones. In doing so, “[t]he
highest authorities of every country should demonstrate their total opposition
to "disappearances".[6]
They should make clear to all members of the police, military and other
security forces that "disappearances" will not be tolerated under any
circumstances.[7]
With respect to drafting implementing legislation,
states parties need to ensure that they not simply enact the minimum required
by the Convention, which, as a result of political compromises, in some instances
falls short of stricter international law and standards, but also implement
such law and standards. Indeed, drafters were aware of this problem and the Convention
repeatedly notes that states parties may have other, stricter standards that
they must observe in addition to what was expressly required by the Convention
itself. For example, as discussed below, in Part III the Convention makes clear
that it cannot infringe stronger protection in national or international law
(Article 37) and that it is without prejudice to the obligations of states
parties under customary or conventional international humanitarian law,
including the Geneva Conventions and Protocols I and II, or to the opportunity
of any state party to authorize the International Committee of the Red Cross (ICRC)
to visit places of detention in peacetime as well as in armed conflict (Article
43).[8]
AI Index: IOR 51/006/2011
You can download this paper from the link below:
http://bit.ly/12ypj29
[1] Sandya Eknaligoda is a
leader of women’s struggle against enforced disappearances in Sri Lanka. Her
husband,
journalist and cartoonist Prageeth Eknaligoda, was “disappeared” on 24 January
2010 when
travelling
to his home in Homagama, near the capital Colombo, shortly after leaving work
at the Lanka-eNews
office.
Local residents told Sri Lankan press that they saw a white van without number
plates close
to
his house at around this time. Prageeth had been due to attend a religious ceremony
on his way home
that
evening, but he called a colleague shortly beforehand to say that he could no
longer attend as he
had
to travel to the Koswatte district of Colombo with an unnamed friend. During
the conversation his
phone
cut out; this was the last contact anyone had with him. Since then his phone
has not functioned.
In
the days leading up to his disappearance he had told a close friend that he
believed he was being
followed.
[2] Machteld Boot, Rodney
Dixon and Christopher K. Hall, ‘Article 7 (Crimes against humanity)’, in Otto
Triffterer,
Commentary on the Rome Statute of the International Criminal Court – Observers’
Notes,
Article
by Article, Munich: C.H.Beck, Oxford: Hart & Baden-Baden: Nomos, 2nd ed.,
2008, p. 221.
[3] Report of the Working
Group on Enforced or Involuntary Disappearances, UN Doc. A/HRC/13/31 (21
December
2009) para. 655.
[4] UN Human Rights Council,
Enforced or involuntary disappearances, UN Doc. A/HRC/14/L.19, 14 June
2010.
[5] See, for example, Amnesty
International, International Criminal Court: Updated Checklist for Effective
Implementation,
Index: IOR 53/009/2010, May 2010
(http://www.amnesty.org/en/library/info/IOR53/009/2010).
[6] Amnesty International,
14-Point Program for the Prevention of “Disappearances”, Point 1, reproduced
in
Amnesty International, “Disappearances” and Political Killings: Human Rights
Crisis of the 1990s – A
Manual
for Action, AI Index: ACT 33/001/1994, February 1994 (14-Point Program).
[8] Ibid., Pt. 13 (“All
governments should ratify international treaties containing safeguards and
remedies
against
"disappearances", including the International Covenant on Civil and
Political Rights and its first
Optional
Protocol which provides for individual complaints. Governments should ensure
full
implementation
of the relevant provisions of these and other international instruments,
including the UN
Declaration
on the Protection of All Persons from Enforced Disappearance, and comply with
the
recommendations
of intergovernmental organizations concerning these abuses.”).