The International Convention for the Protection of all Persons from

Human Rights Law Review 7:3 ß The Author [2007]. Published by Oxford University Press.
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doi:10.1093/hrlr/ngm021 Advance Access published on 29 June 2007
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Susan McCrory*
1. Introduction
The particularly disturbing blend of human rights violations and criminal conduct that have resulted in enforced disappearances has finally been recognised
in a UN treaty: the International Convention for the Protection of All Persons
from Enforced Disappearance (‘Convention’).1 The adoption of the Convention,
long awaited by those families who have endured the distress of uncertainty
over the fate of their relatives, for some seems overdue. Yet, casting an eye at
recent troubling trends that have arisen, its adoption offers a timely reminder
of the need for extreme diligence in every aspect of dealing with detention or
any other deprivation of liberty along with the means to help prevent conditions
allowing for enforced disappearance to occur without detection.
For some, enforced disappearances remain synonymous with dark deeds
carried out decades ago by now-deposed powers. It is less widely appreciated
that the practice of enforced disappearance remains contemporary and has a
global dimension.2 At the General Assembly the adoption of the Convention
*Solicitor and independent consultant on human rights and humanitarian matters
([email protected]). The author has collaborated with the ICRC Advisory Service
on ‘The Missing’ project and previously worked as a Legal Adviser at the Foreign and
Commonwealth Office in London and at the UK Mission to the United Nations in Geneva.
This article reflects the author’s personal views.
1
2
International Convention for the Protection of All Persons from Enforced Disappearance
2006, GA Res. 61/177, 20 December 2006, A/RES/61/177; 14 IHRR 582 (2007).
See the Report of the Working Group on Enforced or Involuntary Disappearances,
25 January 2007, A/HRC/4/41, which states that in 2006 it transmitted 335 new cases of
disappearances to the governments of Algeria, Bangladesh, China, Colombia, Guatemala,
Honduras, India, the Libyan Arab Jamahirya, Nepal, Pakistan, the Philippines, the Russian
Federation, Sri Lanka, the Sudan, the Syrian Arab Republic and Thailand. Of these, 79 cases
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Human Rights Law Review 7:3 (2007), 545^566
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The International Convention
for the Protection of all
Persons from Enforced
Disappearance
546
HRLR 7 (2007), 545^566
3
4
5
were alleged to have occurred in 2006. The number of open cases at the end of 2006 stood at
41,232 and concerned 79 states. At its recent session in March 2007, the Working Group
examined 19 newly reported cases under its urgent action procedure; see OHCHR Press
Release, Human Rights Council Discusses Report Presented by Working Group on Enforced
or Involuntary Disappearances, 21 March 2007, HRC/07/18/Rev.1.
See UN Press Release, Concluding Consideration of Third Committee Report, General
Assembly Adopts Convention on Enforced Disappearances, 20 December 2006, GA/10563.
The ‘coalition’ currently includes the Latin American Federation of Associations of Relatives
of Disappeared Detainees, Asian Federation Against Involuntary Disappearances, the
Collectif des Familles des Disparus en Alge¤rie, Fe¤de¤ration Internationale des Associations
Catholiques Contre la Torture, We Remember, the International Commission of Jurists,
Human Rights Watch, Amnesty International, the Federation International de Droits de
l’Homme and the Humanist Committee on Human Rights.
33 ILM 1529 (1994).
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was heralded by the representative of Honduras as ‘the dawn of a new age and a
day of hope for all’.3 However, none of the promise of the new Convention can be
fulfilled if states do not ratify it and bring it into force, and enable it thus to have
some chance of succeeding in its twin aims of ‘prevention and justice’.
Discussions are now underway between NGOs and others to develop a strategy to bring the Convention into force as soon as possible, aiming to encourage
and assist States to implement its provisions. They also seek to ensure that an
effective Committee on Enforced Disappearances (‘Committee’) is established
under the Convention. This initiative represents the early stage of a coalition
among those NGOs that supported and inspired the adoption of the Convention
tirelessly over many years including in particular those that represent the
families of the disappeared and who channelled some of their anguish and
despair into positive efforts to reduce instances and prevent others from suffering a similar fate.4
Following a brief historical background to the emergence of the Convention,
this article will look at some of its provisions from a relatively technical point of
view, with the aim of highlighting some of the main issues States implementing
the Convention will need to address in their national law. Among these are the
need to deal both with criminalisation and its consequences, as well as addressing all of the Convention’s extensive requirements on prevention and redress for
victims. It will also look briefly at the provisions for the establishment of the
Committee on Enforced Disappearances including those aspects that are of special relevance to States Parties relating to the extent of the competence of the
Committee. Along the way, the article will also look at some of the distinctions
that can be drawn between the provisions of the Convention and those of
the Inter-American Convention on Forced Disappearance of Persons 19945
(‘Inter-American Convention’) and at some of the differences between the way
in which the Convention defines and addresses enforced disappearance and the
manner in which it is addressed as a crime over which the International
Criminal Court (ICC) has jurisdiction. The article does not deal exhaustively
with all aspects of the Convention, but seeks to selectively highlight some of the
The Enforced Disappearance Convention
547
issues that the author thinks will seem most pertinent to the domestic legislators
examining what needs to be done to implement the new treaty their government
has so recently signed.6
2. Background to the Convention
6
7
8
9
Under international law, in particular Article 18, Vienna Convention on the Law of Treaties,
signature of the Convention carries with it a degree of commitment such that, even before
ratifying, states are bound not to do anything which would be counter to its object and
purpose.
Signatory states are: Albania, Algeria, Argentina, Armenia, Austria, Azerbaijan, Belgium,
Bolivia, Bosnia and Herzegovina, Brazil, Burkina Faso, Burundi, Cameroon, Cape Verde,
Chad, Chile, Comoros, Congo, Costa Rica, Croatia, Cuba, Cyprus, Finland, France, Ghana,
Grenada, Guatemala, Haiti, Honduras, India, Ireland, Japan, Kenya, Lebanon, Lithuania,
Luxembourg, Madagascar, Maldives, Mali, Malta, Mexico, Moldova, Monaco, Mongolia,
Montenegro, Morocco, Niger, Paraguay, Portugal, Samoa, Senegal, Serbia, Sierra Leone,
Sweden, the Former Yugoslav Republic of Macedonia, Tunisia, Uganda, Uruguay and
Vanuatu.
Comm. Res. 20 (XXXVI), 29 February 1980, E/CN.4/RES/1980/20.
GA Res. 47/133, 18 December 1992, A/RES/47/133.
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The Convention was adopted by the General Assembly on 20 December 2006
and opened for signature in Paris on 6 February 2007, barely four years after
the first meeting of the open-ended Working Group of the Commission on
Human Rights convened to negotiate and draft the text. 57 States signed the
Convention at the Paris ceremony and a further two have since signed.7 Such
an apparent show of support at this early stage is but an echo of the determined
approach taken in the Working Group from the moment the Commission on
Human Rights (‘Commission’) agreed to draft a legally binding text on the question of enforced disappearance.
The issue of enforced disappearance featured on the agenda of the
Commission regularly, particularly following the establishment of the Working
Group on Enforced and Involuntary Disappearances (WGEID) in 1980, which is
mandated to assist families clarify the fate of their disappeared relatives.8
Subsequently, at its 47th meeting in 1992, the Commission transmitted the
draft Declaration on the Protection of All Persons from Enforced or Involuntary
Disappearance to the General Assembly where it was adopted.9 The issue was
also the subject of many Commission resolutions. Despite this, it was perceived
by many that the absence of a legally binding instrument left a gap in the international framework for the protection of human rights, since there was no
explicit right not to be subject to enforced disappearance. Further, the ability to
ensure prosecutions even when alleged perpetrators were brought in has often
been frustrated by the absence of a criminal offence that reflected all of the
elements that comprise an enforced disappearance and ensure an appropriate
penalty in respect of it. However, not all shared this view and there was
resistance among States to develop another treaty to address human rights
548
HRLR 7 (2007), 545^566
3. Implementing the Convention
The Convention is broken up into three parts. Part I sets out the main requirements that will need to be addressed in the national law of acceding States; Part
II deals with the establishment of a Committee on Enforced Disappearances; and
Part III contains the formal requirements for ratification or accession and entry
into force as well as clarifying the relationship between the Convention and
international humanitarian law.14 This article will focus to a greater extent on
10
11
12
13
14
Comm. Res. 2001/46, 23 April 2001, E/CN.4/RES/2001/46.
Report submitted by Mr Manfred Nowak, independent expert charged with examining the
existing international criminal and human rights framework for the protection of persons
from enforced or involuntary disappearances pursuant to paragraph 11 of Commission
resolution 2001/46, 8 January 2002, E/CN.4/2002/71.
Ibid. at para. 96.
Ibid. at para. 99.
Article 43, Convention.
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issues they considered sufficiently protected by existing human rights instruments and mechanisms.
A degree of stalemate persisted until 2001 when the Commission decided to
appoint an expert to examine the question of whether such a gap in protection
did exist and in light of that expert’s findings to establish an open-ended working
group to draft a legally binding instrument.10 Professor Manfred Nowak was
subsequently nominated to carry out this task and it was his lucid and compelling report11 that persuaded the Commission to convene the open-ended
working group envisaged. In his report, Nowak identified several gaps in
international protection and prevention and stated that these ‘clearly indicate
the need for a legally binding normative instrument for the protection of all
persons from enforced disappearance’.12 He identified three options for such
an instrument including: an optional protocol to the International Covenant
on Civil and Political Rights, an optional protocol to the Convention Against
Torture; or a separate international convention. He believed that this final
option would ‘be the most appropriate for drawing the attention of states to the
extreme seriousness of this human rights violation and for enumerating the
various and detailed state obligations relating to criminal action, preventive
measures, remedies and reparation’.13
The first meeting of the open-ended working group was convened in January
2003 and appointed the Permanent Representative of France, Ambassador
Bernard Kessedjian, to be its Chairperson/Rapporteur. Under his energetic direction and supervision, a draft text was negotiated and developed within three
years. This draft was presented to the Human Rights Council (‘Council’) at its
first session in June 2006. It was adopted at that session by the Council, which
referred it to the General Assembly for adoption by the wide UN membership.
The Enforced Disappearance Convention
549
A. The Right Not to be Subject to Enforced Disappearance
Article 1(1) of the Convention establishes the right not to be subject to enforced
disappearance and Article 1(2) makes it clear that such a right is non-derogable.
The right is enshrined in similar terms to those found in the Universal
Declaration of Human Rights and the International Covenant on Civil and
Political Rights to slavery, torture and arbitrary arrest and detention, along
with other rights the entitlement to which is expressed in the negative: ‘No one
shall be subjected to enforced disappearance’. The Convention is the first universal human rights instrument to assert that there is a right not to be subject to
enforced disappearance. Not even the Inter-American Convention has
enshrined this right, preferring instead a preambular formula that complies
with the view that no single right is violated in a forced disappearance:
‘Considering that the forced disappearance of persons of persons violates
numerous non-derogable and essential human rights enshrined in the
American Convention on Human Rights, in the American Declaration of the
Rights and Duties of Man, and in the Universal Declaration of Human Rights.’
The recognition of this right in the declaratory language adopted in Article 1 of
the Convention is a significant advance in human rights law, even without the
subsequent obligations contained in the Convention. The existence of the right
per se creates obligations on States Parties to ensure the right is respected. Article
1(2) ensures that the right is absolute and enforced disappearance may not be
invoked or justified due to war, political instability or public emergency.
B. The De¢nition and Crime of ‘Enforced Disappearance’
The definition of enforced disappearance contained in Article 2 is the single
most important provision the Convention contains. Both the content of the new
right, as well as the crime that must be constituted as a result of it, are dependent
on the elements it contains. Therefore, neither Article 1 nor Articles 3 and 4 can
be addressed without a detailed consideration of the definition in Article 2.
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Part I and in particular those elements of the Convention that are new to the
framework of international law.
Part I of the Convention contains the main provisions that will require
implementation in national law, including provision for the new right
(Articles 1 and 2); measures relating to criminalisation, prosecution and
penalties (Articles 3^8); provisions concerning jurisdiction and investigation
(Articles 9^12); stipulations relating to extradition and judicial cooperation
(Articles 13^16); extensive measures for prevention (Articles 17^23); and
requirements to ensure redress for victims, including specific provisions
concerning children (Articles 24^25).
550
HRLR 7 (2007), 545^566
15
16
Some disagreement existed in the Working Group over whether the fourth element was a
separate element or integral to the others but the view of the Chairperson was that the text
left sufficient ambiguity for the national legislator to interpret. See Report of the
Intersessional Open-ended Working Group to elaborate a draft legally binding normative
instrument for the protection of all persons from enforced disappearance, 2 February 2006,
E/CN.4/2006/57 at para. 93.
2187 UNTS 90.
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The elements that constitute enforced disappearance for the purpose of the
Convention by virtue of the definition in Article 2 are essentially fourfold:
(i) detention/any deprivation of liberty; (ii) carried out by agents of the State or
with State acquiescence; (iii) followed by a refusal to acknowledge the detention,
or a concealment of the fate of the disappeared person; and (iv) placement of the
disappeared person outside the protection of the law.While each and any of these
elements may be subject to national legislative provisions, all four requirements
must be met in order for an enforced disappearance to be committed.15
Although the precise terms used are different, the definition contains essentially similar elements to those contained in Article II of the Inter-American
Convention and it has much in common with the crime of ‘enforced disappearance of persons’ contained in Articles 7(1)(i) and 7(2)(i) of the Rome Statute of
the ICC 1998 (ICC Statute).16 For States that have already ratified the InterAmerican Convention, the similarities may make implementation easy in this
respect. However, only 13 States have ratified it. A bigger challenge will be dealing with the relationship between the newly adopted Convention and the legislation adopted by those States Parties to the ICC Statute that have chosen to adopt
national laws which allow for domestic prosecution of ICC Statute crimes.
While it is not necessarily helpful to have differing definitions for similar
offences adopted within a fairly short time span, it need not be a source of too
great speculation at this stage as to which, if any, is the better provision, or why it
has transpired that the definitions in the Convention and Article 7 of the ICC
Statute do not mirror each other more closely. Time will tell whether either or
both are effective in securing convictions for the crimes they seek to prosecute
and prevent. A pragmatic approach requires that they each be addressed in an
appropriate manner in national law taking into account the different situations
that they are designed to meet. In most States, this is likely to mean that separate
legislative provisions are required to implement the Convention unless the
offence has already been recognised in national law.
Article 4 of the Convention requires States Parties to take the necessary measures to ensure that enforced disappearance constitutes an offence under their
criminal law. There is no requirement in Article 1 to enact a direct provision protecting the right in national law, but criminal measures are among the most
common response to ensuring rights can be enforced in many States and the
provisions mirror to an extent the structure of the UN Convention against
Torture 1984 (CAT).
The Enforced Disappearance Convention
551
C. Distinctions in De¢nition Between the ICC Statute and the Convention
The key distinction that exists between the ICC Statute and the Convention is
that the former addresses enforced disappearance only as a ‘crime against
humanity’, and therefore only when it is committed ‘as part of a widespread
or systematic attack directed against any civilian population’, whilst the
Convention is designed to address any case of enforced disappearance.
Consequently, the mechanisms of national law and international cooperation
are different for the two treaties. While a national court could have jurisdiction
over enforced disappearance under both definitions due to the operation of the
complementarity principle, the ICC will have jurisdiction only in the strictly
limited conditions that are set out in its Statute.
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The Convention is quite specific that enforced disappearance should constitute ‘an offence’ under criminal law and it will, therefore, be insufficient for its
purposes to rely on any existing criminal provisions that relate to only some of
the elements. It will not be enough to demonstrate that all of the elements can be
prosecuted separately, as is the case in many States currently; the failure to
secure effective prosecutions with appropriate proportionate sentences was
among the arguments for adopting the new Convention.
Potentially more challenging for the national legislator is Article 3 which
requires investigation of ‘acts defined in article 2’ where they are ‘committed by
persons or groups of persons’ but without the authorisation, support or acquiescence of the State. In this case, the‘act’ would not have the necessary ingredients
to be an ‘enforced disappearance’ in the sense of the Convention and the precise
impact of this provision is, therefore, unclear. While those responsible for such
‘acts’should be‘brought to justice’, there is no specific requirement to criminalise
the ‘acts’ concerned either collectively or individually. Article 3 is, however,
drafted in mandatory language so that ‘appropriate measures’ will need to be
adopted in all States Parties where they do not already exist. In some States the
inclusion of this provision may facilitate the enactment of criminal and investigative powers in relation to such ‘acts’ but there will undoubtedly be others for
whom the scope of the obligations remain unclear.
No further provisions of the Convention pertain to Article 3, yet its inclusion
in the final text highlights that while the main purpose of the Convention is to
address enforced disappearance as a human rights issue, and thus situations
which involve some State responsibility, acts of similar gravity carried out by
persons not acting for the State cannot be neglected. These acts, however, do
not violate the right not to be subject to enforced disappearance established by
the Convention. This provision reflects a tension over the question of the perpetration of crimes similar to enforced disappearances by non-State actors.
However, for the purposes of the Convention the issue is settled.
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HRLR 7 (2007), 545^566
D. Investigation, Prosecution, and Penalties, Including Limitations and
Jurisdiction and Extradition
The complex and continuing nature of enforced disappearance, as well as the
number of actors that can be directly or indirectly involved, is reflected in the
provisions that deal with investigation, prosecution and penalties, including
limitations and jurisdiction (Articles 8^16). There is not room to examine
17
See infra for a discussion of Article 3.
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Two other distinctions can be drawn. First, the definition in Article 7(2)(i) of
the ICC Statute includes an ‘arrest, detention or abduction’ carried out by or
with the authorisation, support or acquiescence of a ‘political organisation’.
It, therefore, allows for a much wider group of perpetrators than the
Convention does, and gives the ICC jurisdiction over this potentially wider
group in a way that is more likely to be effective to ensure its full ability to prosecute crimes against humanity. The ICC Statute definition, therefore, can be best
understood by considering the object and purpose of the ICC Statute against
those of the Convention, notwithstanding Article 3 of the Convention.17
Second, Article 7(2)(i) of the ICC Statute requires an intention to ‘remove [the
persons detained or abducted] from the protection of the law for a prolonged
period of time’. This requirement is reinforced in the relevant Elements of Crimes
contained in Annex II to the ICC Statute. As far as prosecution is concerned this
is an additional mens rea element and as this provision has not been applied or
interpreted by the ICC or any other competent body, its significance remains
uncertain. It is sufficient to note here that there are already a significant
number of elements that constitute both the right and the crime of enforced disappearance under the Convention, and the addition of such a further element
was not deemed appropriate.
It is also worth noting here Article 5 of the Convention which provides:
‘The widespread or systematic practice of enforced disappearance constitutes a
crime against humanity as defined in application international law and shall
attract the consequences provided for under such applicable international law.’
This may be construed as a reference to the ICC Statute, and any existing or
future case-law under it or other jurisdictions. While this provision does not
imply any specific obligation to implement, it does underline further that the
Convention is addressing enforced disappearance where it occurs in situations
which do not only involve ‘widespread or systematic’ practice. Rather, despite
this implied reference to the ICC Statute in Article 5, there is nothing to prevent
the provisions of the Convention also applying to situations that fall within the
ICC Statute as well as to other cases of enforced disappearance.
The Enforced Disappearance Convention
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18
These include Article 28, ICC Statute.
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the detail of these provisions in this article, but it is worth highlighting certain
specificities in the relevant provisions.
Article 6 indicates those whom national law must ensure can be held
‘criminally responsible’. These include not only any person directly involved in
the commission of the offence of enforced disappearance (Article 6(1)) but also
any ‘superior’ who knew that ‘subordinates under his effective authority and
control’ were committing or about to commit the offence (Article 6(2)(i)) as well
as the ‘superior’ who exercised ‘effective responsibility and control over activities
concerned with the crime of enforced disappearance’(Article 6(2)(ii)). This
second category of superior must also have failed to take measures to
prevent the commission of the enforced disappearance, or failed to have
submitted the matter for investigation to competent authorities (Article
6(2)(iii)). There is no definition of ‘superior’ so it should be construed on a caseby-case basis and national legislators will have to determine how best to
approach this according to the requirements of their criminal justice system.
However, the Convention does distinguish its provisions concerning ‘superiors’
from other provisions of international law concerning ‘command responsibility’,
to which the arrangements on ‘superiors’ are ‘without prejudice’.18 Finally
Article 6(2) makes clear that superior orders cannot be invoked to justify
enforced disappearance.
Article 7 of the Convention requires that the penalties provided for in
national law must be appropriate and take into account the extreme seriousness
of the crime of enforced disappearance. National legislators will, therefore, have
to decide what is an appropriate penalty in light of existing penalties for other
serious crimes. The Convention however does allow, in Article 7(2)(a), for mitigating circumstances for those implicated where they help find a disappeared
person, resolve their fate or identify perpetrators. Similarly, Article 7(2)(b)
allows for aggravating circumstances, including the death of a disappeared
person or offences involving pregnant women, minors and other vulnerable
individuals. Both mitigating and aggravating circumstances may, depending on
the precise operation of national law, have an impact on the penalty imposed.
However, it remains a matter of choice for States Parties whether they opt to
implement Articles 7(2)(a) and 7(2)(b).
Article 8(1) provides that any statute of limitations should be‘of long duration’
and commence ‘from the moment when the offence of enforced disappearance
ceases, taking into account its continuous nature’. This may prove difficult to
transpose into national law as there is no other reference in the Convention to
the ‘continuous nature’of the offence. However, some assistance may be derived
from Article III of the Inter-American Convention which provides: ‘This offense
shall be deemed continuous or permanent as long as the fate or whereabouts of
the victim has not been determined.’ This reflects the widely held view that for as
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HRLR 7 (2007), 545^566
19
20
See infra for a discussion of Article 24.
Article 3, CAT provides:
1. No State Party shall expel, return (‘refouler’) or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being
subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent
authorities shall take into account . . . the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of human rights.
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long as the fate of the disappeared person is not clarified the offence is ongoing.
Article 8(2) requires victims to be guaranteed the right to an effective remedy
during the term of limitation, which consequently may be a very long time
after the person initially disappeared if their fate remains uncertain. In order to
have a better sense of the import of this provision it is necessary to look at the
very broad definition of a ‘victim’ contained in Article 24 which also sets out a
non-exhaustive list of forms of reparation.19
Articles 9^14 of the Convention deal with jurisdiction, investigation, extradition and assistance and cooperation between States Parties. A State Party must
be able to exercise jurisdiction over alleged offenders present in its territory for
offences committed elsewhere unless ‘it extradites or surrenders him or her to
another State in accordance with its international obligations or surrenders him
or her to an international criminal tribunal whose jurisdiction it has recognized’
(Article 9(2)). States Parties should also be able to take suspected offenders into
custody pending investigation and prosecution or extradition where appropriate
(Articles 10 and 11). They must investigate any reported enforced disappearance
including where no formal complaint has been filed, and should ensure the
safety of witnesses and relatives (Article 12(1) and 12(2)). All necessary investigative powers should be available to the relevant authorities and measures
should be taken to prevent and punish acts that hinder the conduct of any investigation (Articles 12(3) and 12(4)).
Article 13 provides an extradition regime for enforced disappearances.
Notably, for the purposes of extradition, enforced disappearance shall not be
considered a political offence. Articles 14 and 15 require States Parties to afford
each other mutual legal assistance and cooperation, both with criminal proceedings and victim assistance. Article 16 provides that no individual should be
expelled, returned, surrendered or extradited who may be in danger of being
subjected to enforced disappearance. This non-refoulement provision is drafted
in wider terms than that contained in Article 3 of CAT, as it also prohibits the
‘surrender’of persons to another State and requires consideration not only of the
existence in the State concerned of a‘consistent pattern of gross, flagrant or mass
violations of human rights’, but also of ‘serious violations of international
humanitarian law’.20 This latter provision is particularly interesting because
such violations of international humanitarian law may not only be perpetrated
The Enforced Disappearance Convention
555
by the State but also by armed groups or other actors. It is sufficient for the
pattern of violations to exist for non-refoulement to apply.
E. Prevention of Enforced Disappearance
21
GA Res. 57/199, 18 December 2002, A/RES/57/199; 10 IHRR 595 (2003).
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The provisions on prevention of enforced disappearance, Articles 17^23, are
extensive and will have far-reaching consequences for detention law, practice
and policy in all States Parties. The numerous provisions, their length and the
detail they contain distinguish this aspect of the Convention significantly from
the short Article XI of the Inter-American Convention.
In the interest of preventing enforced disappearance, the Convention stipulates requirements that must be applied to all situations in which individuals
are deprived of their liberty. These are likely to pose considerable challenges to
law and policy makers at the national level. Interpretations of the potential scope
of these provisions might be inspired by the Optional Protocol to the Convention
against Torture 2002 (OPCAT).21 OPCAT establishes a Subcommittee for the
Prevention of Torture (SPT) mandated to undertake regular visits to ‘places
where people are deprived of their liberty’ (Article 1). Albeit for the purposes of
that convention, Article 4 of OPCAT sets out that a ‘deprivation of liberty means
any form of detention or imprisonment or the placement of a person in a public
or private custodial setting which that person is not permitted to leave at will by
order of any judicial, administrative or other authority’. Those States that have
implemented OPCAT will already have had to consider the scope of places where
persons are ‘deprived of the liberty’. Thus, the recently formed SPT may potentially influence how the Disappearances Convention operates with regard to its
preventive aims.
Article 17(1) of the Convention sets out an absolute prohibition on ‘secret
detention’, expressed in similar terms to the new right not to be subject to
enforced disappearance: ‘No one shall be held in secret detention’. This is the
first time the right not to be held in secret detention has been made explicit in
the text of a universal legally binding treaty. It is supported by the requirement
in Article 17(2)(c) that States Parties guarantee that any person deprived of their
liberty be held ‘solely in officially recognized and supervised places of deprivation of liberty’. Against the background of discussions on enforced disappearance the basis for these provisions is clear, and the preventive aims of this part
of the Convention consequently address all forms of detention. The absolute
mandatory language of Article 17(2) underlines the rigorous criteria with
which all deprivations of liberty should comply. Other elements of Article 17(2)
include the requirement that there be specific legislative provision establishing
the conditions for deprivation of liberty and who may order such detention, as
556
HRLR 7 (2007), 545^566
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well as the right of the person deprived of liberty to communicate with his/her
family, counsel or other person of his/her choice including consular authority
for foreign nationals. It also provides that access to places of detention be granted
to competent and legally authorised authorities and institutions. Article 17(2)(f)
of the Convention provides that a detained person, or his/her representative if
enforced disappearance is suspected, must be entitled to apply to a court for a
ruling on the lawfulness of the detention, competent to order release if the
detention is unlawful.
Finally, Article 17(3) requires States Parties to ensure that up to date, accurate
and detailed registers of all persons who are deprived of their liberty are compiled and maintained. These registers should include the identity and physical
condition of the detained person; the reasons for the detention including who
ordered it and where, when and by whom it was carried out; details of the place
of detention and precise time of admission; as well as information relating to any
transfer to another place of detention. In the event of death of the detained
person the register must state the circumstances and cause of death and indicate
the destination of the remains. It is likely that while many of these requirements
may currently be met in ‘regular’ places of detention, the fact that the provision
applies to all places where persons deprived of their liberty are held may mean
that national authorities have to take considerable steps to ensure that all relevant registers meet the needs of the Convention. The Convention does not state
where such registers should be kept and does not exclude that they could be kept
by a central authority.
Articles 18^20 relate to access to the information contained in such registers
and may pose difficulties to those seeking to implement and apply these provisions in a balanced way. However, it may help to consider the goal of the three
provisions: namely, to ensure, on one hand, that any person with a legitimate
interest can have access to the information about the detained person
(Article 18), while at the same time ensuring that sensitive personal information
is sufficiently protected (Article 19), as is the detained person’s right to privacy
and safety, and preventing the release of information that could prejudice an
ongoing investigation. Only in cases where the detained person is under judicial
control are restrictions to such information permitted. Article 22 is linked
closely to these provisions and requires States Parties to prevent and punish
those who fail to keep registers accurately or disclose information when
required to do so, or delay or obstruct those who seek judicial remedies in this
regard.
Article 21is noteworthy, reflecting the specificity of situations of enforced disappearance, and requires that when any persons are released from detention
they are ‘released in a manner permitting reliable verification that they have
actually been released’ and that their ‘physical integrity’ and ‘ability to exercise
fully their rights at the time of release’ is assured. No indications are given as to
what might constitute ‘reliable verification’.
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F. TheVictims of Enforced Disappearance
One of the chilling aspects of enforced disappearance, whether as a crime or a
violation of human rights, is its particular ability to create many other victims in
addition to the person who has been subject to a deprivation of liberty. The family
and friends of a detained individual and sometimes larger circles or communities are all capable of being victims whether because of the anguish and
uncertainty the disappearance inspires, or because it provokes terror and fear
of repetition. The Convention takes a very broad view of who is a‘victim’, including in its definition the disappeared person‘and any individual who has suffered
harm as a direct result of an enforced disappearance’.22 Article 24 sets out the
rights that victims should be guaranteed and no distinction is made between the
rights and remedies available to the disappeared person and other victims. The
nature of enforced disappearance means that in many cases the disappeared
person is unable to invoke any remedies.
Article 24(2) of the Convention establishes a right for victims ‘to know the
truth regarding the circumstances of an enforced disappearance’, including the
progress and results of any investigation and the fate of the disappeared person.
The only other legally binding provision of this nature exists in Article 32 of
Additional Protocol 1 to the Geneva Conventions23 where the ‘right of families
to know the fate of their relatives’ is cited as the basis upon which the whole of
Section III of the Additional Protocol is to be implemented by the parties to the
Protocol, the parties to the conflict and international humanitarian organisations. The recognition of a ‘right to know’ in the Convention ensures a much
broader application than through the Additional Protocol, not only because it
will go beyond situations governed by international humanitarian law, but also
because the right applies to all ‘victims’and this is a wider group than ‘families’
under the Additional Protocol. The right under the Convention is also wider
because it is not limited to knowing the ‘fate’, which is clearly only one element
22
23
Article 24, Convention.
Geneva Protocol 1 Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts 1977, 1125 UNTS 3.
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Article 23 is a particularly important provision with regard to prevention as it
obliges States Parties to ensure that appropriate training is given to law enforcement personnel and any other person who may be involved in the custody or
treatment of a person deprived of their liberty. The list of such persons includes
civil, military and medical personnel and public officials but it is not exhaustive.
The training must include education and information about the Convention, to
ensure they do not become involved in enforced disappearances and that
they understand the need to prevent and investigate and resolve all cases.
The provision is similar in many respects to Article 10 of CAT.
558
HRLR 7 (2007), 545^566
24
25
Comm. Res. 2005/66, 20 April 2005, E/CN.4/RES/2005/66, requested the Office of the High
Commissioner for Human Right to commence a study on the right to truth. The Study on the
Right to Truth, 8 February 2006, E/CN.4/2006/91, is to be considered by the Council at its
June 2007 session.
See Principle 18, Basic Principles, GA Res. 60/147, 16 December 2005, A/RES/60/147;
13 IHRR 907 (2006). On the Basic Principles, see Bassiouni, ‘International Recognition of
Victims’ Rights’, (2006) 6 Human Rights Law Review 203.
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of knowing the truth of the circumstances of a disappearance. The ‘right
to truth’ is currently a matter under consideration at the Council, having
been first brought up as an autonomous issue before the Commission at its
61st session in a resolution sponsored byArgentina in 2005.24 It is an issue that
many States wish to see developed for regular discussion in the Council.
Article 24(3) should be seen as closely associated with Article 24(2) and
obliges States Parties to take measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their
remains. This requirement to ‘search for, locate and release’ is a separate obligation from that contained in Article 12 with regard to investigation of alleged
cases of enforced disappearance. The Article 24(3) requirement stems from a
provision that is concerned with victims and their rights, rather than flowing
directly from the criminalisation and prosecutorial aspects of the Convention.
The other provisions contained in Article 24 include the right to obtain
prompt, fair and adequate compensation (Article 24(4)) and ‘reparation’ is
stated in Article 24(5) to include restitution, rehabilitation, satisfaction
(including restoration of dignity and reputation) as well as guarantees of nonrepetition. It is worth noting here that the Basic Principles and Guidelines on
the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International
Humanitarian Law, which similarly define restitution, were adopted by the
General Assembly in December 2005,25 only six months before the Convention
was referred to the General Assembly by the newly established HRC.
Additionally, Article 24(6) of the Convention requires that ‘each State Party
shall take appropriate steps with regard to the legal situation of disappeared persons whose fate has not been clarified and that of their relatives, in fields such as
social welfare, financial matters, family law and property rights’, although this
list is not exhaustive. These issues can be of immense practical importance to
families while the fate of a disappeared person remains uncertain. This provision will need careful implementation at the national level but if addressed effectively will enable some of the hardships that often ensue following the
disappearance of a person to be resolved, at least on a provisional basis, pending
clarification of his/her legal status. In many situations, the absence of a clear
legal status for a missing person, it being uncertain as to whether the individual
is dead or alive, can lead families to face additional difficulties. In some cases, the
simplest manner in which this can be addressed is through the adoption of a
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559
G. Enforced Disappearance and Children
The enforced disappearance of children is an especially disturbing practice and
complex in the issues to which it gives rise legally, morally and socially.
The longer a situation goes on the more difficult it is to achieve any satisfactory
solution, especially when children may have known from birth only an adoptive
family. This adoptive family may be directly or indirectly implicated in
the circumstances that led to the enforced disappearance of the child or may
be relatively innocent. But the difficult issues that face any adopted child
who learns the truth of his/her ‘real’ parents can be significantly increased
when this truth involves enforced disappearance. In addition to the personal
trauma, there are often highly complex legal matters especially when the child
may have been brought up in another country from that in which he/she was
born.
Article 25 of the Convention is a provision dedicated solely to the issue of
enforced disappearance of children, whether they are subjected to it as individuals in their own right or as victims of their parents’ enforced disappearance,
including where they are born during their mother’s captivity. The provision
requires criminal measures to be adopted in national law to address such cases
as well as the falsification, concealment or destruction of documents that attest
to the true identity of a child. It also requires States Parties to search for and
26
The International Committee for the Red Cross (ICRC) has worked extensively on these
issues. Following its conference on ‘The Missing’ held in February 2003, the ICRC made its
own pledge, at the 28th International Conference of the Red Cross and Red Crescent in
December 2003, to ‘resolve the problem of people unaccounted for as a result of armed
conflict or internal violence and to assist their families’. Many of the issues are addressed
in the ICRC Report, ‘The Missing and their Families, Action to Resolve the Problem of People
Unaccounted For As a Result of Armed Conflict or Internal Violence and to Assist their
Families’, available at: www.icrc.org/Web/Eng/siteeng0.nsf/html/5XRDJR. Implementation
of resolutions and pledges adopted at the 28th International Conference will be considered
at the 30th International Conference scheduled for November 2007.
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legal status of ‘missing or disappeared person’ established according to clear
criteria. In some States this is already the case.26
Finally Article 24 obliges States Parties to guarantee the right to form and
participate in associations and organisations concerned with establishing the
circumstances of enforced disappearances and the fate of disappeared persons,
as well as with assistance to victims. Since the emergence of this Convention
owes much to the efforts of family associations to find their relatives and publicise the issue of enforced disappearance so as to prevent others suffering a similar fate, this provision represents not only a clear obligation on States to grant
this particular freedom of association but may also be seen as a tacit homage to
those that have done so and brought their direct experience into the negotiations
on the Convention.
560
HRLR 7 (2007), 545^566
4. Formal Matters
Before looking at the provisions pertinent to the establishment by the
Convention of the Committee on Enforced Disappearances, it is appropriate to
take note of some of the formal requirements set out in the Convention for its
coming into force and general operation as these must also be considered by
any national legislator. These are contained in Part III of the Convention
(Articles 37^45). Many of the provisions are unremarkable but it is worth drawing attention to Article 37 which provides that ‘nothing in this Convention shall
affect any provisions which are more conducive to the protection of all persons
from enforced disappearance and which may be contained in’ the domestic laws
of a State Party or international law in force for that State. This means that there
may be cases where a national legislator may claim that the Convention’s provisions do not need to be implemented because the existing national law or
applicable international law gives a higher degree of protection. Ultimately this
will need to be justified in any report submitted by the State Party to the
Committee reflecting the measures that have been taken to give effect to the obligations under the Convention (Article 29), in response to which the Committee
may make comments, observations or recommendations.
The Convention requires ratification by 20 States to enter into force (Article
39) and those first States Parties will have considerable influence over the membership of the Committee to which ten individual experts will be elected no later
than six months following the entry into force.
The Convention is silent on the issue of reservations, and, unlike Article 28 of
CAT, makes no specific provision for States Parties to declare that they do
not recognise the competence of the Committee. The only declaration expressly
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identify such children and return them to their families (Article 25(2)), including
putting in place legal arrangements to annul any adoption or placement
of children that originated in an enforced disappearance (Article 25(4)).
Article 25(3) of the Convention obliges States Parties to give each other assistance with searching, identifying and locating children. It should be noted, however, that in all cases the ‘best interests of the child shall be the primary
consideration’. Children who can do so have the right to express their own
views and these are to be given ‘due weight in accordance with the age and
maturity of the child’. Any implementation of this provision will be affected by
the framework that already exists in national law for child protection, abduction,
adoption and family law more generally. The disposition that the best interests of
the child must prevail is fairly universally endorsed but may lead in practice to
difficult dilemmas as to how best those interests are served. Such situations are
rarely easy.
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5. The Committee on Enforced Disappearances
Part II of the Convention deals with the establishment, functioning and mandate
of the Committee on Enforced Disappearances. This is of less direct relevance to
implementation in national law, but is relevant to the national legislator because
of the competences the Committee will have, including the possibility of receiving and considering individual petitions or inter-State complaints provided in
Articles 31 and 32 of the Convention, respectively.
Before looking at the relevant provisions it is worth mentioning the probable
co-existence of two distinct bodies mandated to deal with enforced disappearances: the Committee and the WGEID. As a preliminary matter, it should be
noted that the Committee will not be established until the Convention comes
into force. While there is much hope that this may be achieved quickly, the
nature of the measures that need to be implemented at the national level may
slow this process in some States and entry into force may take some time.While
this article will briefly examine how the Committee will be established and the
mandate it will have, speculation about its role in relation to the WGEID is almost
certainly premature. This is especially the case at present as, in common with
many of the mechanisms established under the Commission, the mandate of
the WGEID is currently being considered by the HRC Working Group on the
Review of Mandates and Mechanisms. General Assembly Resolution 60/251
establishing the Human Rights Council requires the new Council to conduct
and complete a review of all the special mechanisms of the Commission within
one year of its first session.28 The deadline for doing so is June 2007 and the
27
28
See ‘15-11-2002 FAQ: ICRC Doesn’t Publish its Reports on Prison Visits^How Can Working
Confidentially be Effective in Preventing Torture?’, available at: http://www.icrc.org/web/
eng/siteeng0.nsf/htmlall/5fmfn8?opendocument.
Para. 6, GA Res. 60/251, 3 April 2006, A/RES/60/251; 13 IHRR 1195 (2006).
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permitted relates to methods of dispute resolution regarding issues of the interpretation or application of the Convention set out in Article 42(1).
As mentioned earlier, Article 43 of the Convention states clearly that it is
without prejudice to the provisions of international humanitarian law including
the four Geneva Conventions of 1949 and the two Additional Protocols of 1977.
It also makes it clear that it is without prejudice to ‘the opportunity available
to any State Party to authorize the International Committee of the Red
Cross [ICRC] to visit places of detention not covered by international humanitarian law’. This provision is probably included to ensure States Parties are not
discouraged from authorising the ICRC to carry out visits to places of detention
out of concern that their responsibility under the Convention might be thus
engaged. Such visits may continue to take place on the same basis they have
done to date without the Convention having any impact.27
562
HRLR 7 (2007), 545^566
29
For the WGEID’s mandate see Comm. Res. 20, supra n. 8.
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attitude of the Council to all existing mandates and mechanisms should become
clearer after this date. However, the present role of the WGEID is different from
that designed for the Committee in the Convention. First, it is not a treaty body
and has a broad mandate to examine questions relevant to enforced or involuntary disappearances of persons.29 In order to fulfil this mandate it may seek and
receive information from governments, inter-governmental organisations,
humanitarian organisations and other reliable sources. The WGEID is not limited in its scope of enquiry in the same way as a treaty body is limited to only
receiving communications from States Parties. It is, therefore, likely that for a
considerable period of time, even after the establishment of the Committee, the
role of the WGEID will remain valuable, particularly where cases of enforced
disappearance arise in States that choose not to become parties to the
Convention.
Article 26 of the Convention provides for a Committee of ten individual
experts nominated by States Parties to be elected for terms of four years with
the possibility of re-election once only (Article 26(4)). Five of the first elected
members shall however have a term of only two years; this allows for the
Committee to be renewed regularly without being wholly reappointed and
such arrangements are common when new bodies are being established. The
experts must be independent and impartial, of high moral character and recognised competence, and States Parties should aim for a membership that has an
equitable geographic distribution and balanced gender representation (Article
26(1)). The Committee shall be free to establish its own rules of procedure
(Article 26(6)) and shall be provided by the Secretary-General of the United
Nations with the means, staff and facilities required for the effective performance of its functions (Article 26(7)). In relation to their function as experts,
the members of the Committee will be entitled to facilities, privileges and immunities (Article 26(8)). Finally, States Parties are required to cooperate with the
Committee and assist its members in the fulfilment of their mandate to the
extent that it has accepted those functions.
Article 27 of the Convention is an interesting provision that requires States
Parties to convene a conference between four and six years after the entry into
force of the Convention with the object of evaluating its functioning and deciding whether monitoring of the Convention should be transferred to a body other
than the Committee. The inclusion of this provision allows sufficient time for a
new mechanism to be established but leaves open the possibility that another
body may better suited to carry out its functions. Only those States that have
become parties to the Convention will make this decision. Four to six years
after entry into force should leave plenty of time for the States Parties to take an
informed decision in the light of the possibilities that may exist at that time.
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30
Article 16(3), OPCAT.
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Article 28 requires the Committee to cooperate with all relevant organs of the
United Nations, including treaty bodies and special procedures as well as intergovernmental organisations and State institutions or agencies working towards
the protection of all persons from enforced disappearance. Article 28(2) requires
the Committee to consult other treaty bodies, in particular the Human Rights
Committee instituted by the International Covenant on Civil and Political
Rights, to ensure that as the Committee discharges its mandate there is consistency between the observations and recommendations of these separate treaty
bodies. This provision is certainly valuable as the absence of consistency is often
reproached, but is not mirrored in the either the International Covenant on Civil
and Political Rights or the CAT. Even the SPT, established by OPCAT, has only
one specific requirement regarding its relationship with the Committee against
Torture: to present a public annual report on its activities to that committee.30
Such consultation will therefore present a challenge to the Committee to see
how best this requirement can be fulfilled.
The mandate of the Committee is set out in Articles 29^ 36 of the Convention.
Article 29 requires States Parties to report to the Committee within two years of
ratification on their efforts to implement the Convention. An urgent action procedure is set out in Article 30 which allows relatives of a disappeared person or
other authorised representative, to submit as a matter of urgency a request to the
Committee that a‘person be sought and found’. Article 30(2) sets out five admissibility criteria which must be satisfied before the Committee will be seized of the
matter. These criteria include the following: (i) the complaint must not be manifestly ill-founded; (ii) the complaint must not be an abuse of the right of submission; (iii) the complaint must have been submitted to the relevant State
authorities where they exist; (iv) the complaint is not incompatible with the provisions of the Convention; and (v) the complaint should not have been submitted
to another procedure of international investigation or settlement of the same
nature. In response to such urgent action requests, the Committee may request
the State Party concerned to take the necessary measures, including interim
measures, to locate and protect the person concerned and inform the
Committee within a specified period of time of the measures taken. The
Committee shall inform the person who made the request concerning the disappeared person of any recommendations it has made to the State Party as well as
the information it receives from the State Party. The Committee is to‘continue its
efforts to work with the State Party’and keep the person who made the request
informed of such efforts for as long as the fate of the disappeared person remains
unresolved.
Article 31 provides for an optional individual communications procedure.
Under this provision, States Parties may accept the competence of the
Committee to receive and consider requests from or on behalf of individuals
564
HRLR 7 (2007), 545^566
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claiming to be victims of violations of the Convention. The right of individual
petition to the Committee is not automatic and the Committee will not accept
any communication regarding a State Party that has not made a declaration
that it recognises this competence of the Committee. Article 31(2) sets out the
conditions under which communications shall be inadmissible, including the
following: (i) where the communication is anonymous; (ii) the communication
constitutes an abuse of the right of submission; (iii) the matter is being considered under another procedure of international investigation or settlement of the
same nature; and (iv) where all effective domestic remedies have not been
exhausted (with the exception of where an application for domestic remedies is
unreasonably prolonged). As in urgent action requests, the Committee will
transmit the communication to the State Party concerned and await information, but it may also exercise its discretion to submit a request for urgent action
to the State Party to take necessary interim measures to ‘avoid possible irreparable damage to the victims of an alleged violation’. Meetings concerning such
individual communications shall be closed but when the Committee decides
to terminate the procedure it will notify the State Party and the complainant of
its views.
Article 32 of the Convention also provides for an optional inter-State complaints procedure. A State Party may make a declaration under Article 32 that
it recognises the competence of the Committee to receive communications from
other States Parties regarding conduct within its territory and that it may make
such communications itself. However, the Committee can only assess complaints where both the complainant State and the State alleged to be failing to
fulfil its obligations under the Convention have made appropriate declarations.
The Committee can address ‘serious violations’ by States Parties without the
need for either an Article 31 or 32 declaration if it receives ‘reliable information’
that a State Party is seriously violating the Convention. Under Article 33, the
Committee may ask one of its members to undertake a visit and report back.
However, the ability of the Committee to undertake such a visit is subject to the
agreement of the State Party concerned. The State Party will be informed of the
intention and purpose of a proposed visit and will have the opportunity to
respond. This response may lead the Committee to postpone or cancel the visit,
but in the event that it does not decide to do so it will be frustrated in its efforts if
the State Party does not agree to the visit. In those circumstances, some thought
will need to be given to whether the State Party, in failing to agree to the request,
is meeting its obligations under Article 26(9) which provides that each State
Party is to ‘cooperate with the Committee and assist its members in the fulfilment of their mandate, to the extent of the Committee’s functions that the State
Party has accepted’.
Article 34 has been welcomed by many for the power it gives to the
Committee to bring the question of enforced disappearance urgently before the
General Assembly of the United Nations, through the Secretary-General. While
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6. Conclusion
Signing a newly adopted treaty is often perceived as a good opportunity to
demonstrate support for what the new instrument represents. It is also a welcome step to take after many long hours, often over many years, at the negotiating table. However the sense of elation generated by a signing ceremony needs to
be quickly followed by concrete steps to bring the new instrument into force, and
this is where challenges often become stark and real. Despite the sense of finality
it can convey, in reality signing is just another step somewhere on the way from
achieving a political commitment to address an issue at the international level to
turning it into a tangible reality through the adoption of national implementing
measures.While consideration should be given throughout negotiations on any
text by all those who may subsequently consider becoming parties to it, it is often
too difficult to reach agreement on language or elements that fit neatly into all
systems to allow easy transposition into national law. This is particularly the
case with treaties addressing human rights issues, where the impact of the
31
See supra Section 3 C.
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an explicit provision that the Committee may do so is valuable, it should be noted
that this may only be invoked where the Committee receives well-founded
information that enforced disappearance is being practiced on a widespread or
systematic basis in the territory of a State Party. The Committee is also required
to seek from the State Party concerned all relevant information on the situation
before bringing the matter to the attention of the General Assembly. It should be
noted though that the practice of enforced disappearance on a widespread or
systematic basis is recognised in Article 5 of the Convention as constituting a
crime against humanity in applicable international law and may thus engage
other institutions in the investigation of the alleged violations taking place.31
The competence of the Committee is limited to cases of enforced disappearance which commence after the entry into force of the Convention and thus it
will not have the mandate to address current unresolved cases, despite their continuous nature. Similarly, none of the obligations assumed by States Parties on
ratification will have any effect other than in relation to enforced disappearances that commence after the Convention enters into force.
Finally, Article 36 requires the Committee to submit an annual report on its
activities to States Parties and the General Assembly. States Parties are to be
informed in advance if any observation concerning them is to be included in
the annual report and must be given time to respond to such observations.
They may also request that their own comments or observations also be published in the annual report.
566
HRLR 7 (2007), 545^566
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treaty’s provisions is designed mostly to benefit people in the State concerned
and not principally to affect relations between States.
At the time of writing 59 States have signed the Convention and several have
stated their commitment to implementing it quickly with the goal of bringing it
into force and enabling the Committee to be established. Those that are among
the first to do so will have a greater opportunity to influence the composition of
the Committee. This short analysis of the provisions of the Convention has
focussed principally on the issues that will need to be addressed at the national
level in order to ensure that a State fulfils its obligations under the Convention.
It is intended to highlight the challenges contained in the Convention with a
view to helping those who face that task and in no way to dissuade them from
confronting it. None of the elements is insuperable, but where difficulties arise
it is hoped that with imagination and determination an effective degree of
implementation can be ensured and that the Convention can fulfil the opportunity it offers to help protect all persons from enforced disappearance.