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

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[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).

[7] Ibid.

[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.”).




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