This lesson studies the new International Convention for the Protection of all Persons from Enforced Disappearance, how it came into being and what needs to be done to ensure its success.

A. Historical overview

The Working Group on enforced or involuntary disappearances was established by the UN Commission for Human Rights at its 1980 session. The Group's mandate was to act as a channel of communication between families of disappeared persons and the governments concerned, with a view to ensuring that individual cases were investigated and the whereabouts of the disappeared persons clarified. In 1992, the UN General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearances, and the Working Group was given the task of monitoring states' compliance with it. The Declaration was an attempt to place states under an obligation to take effective measures to prevent and terminate acts of enforced disappearance. Since its creation, the Group has submitted more than 50 000 individual cases to governments in more than 90 countries.

On 30 August 2006, the International Day of the Disappeared, the Group stated its deep concern at the large number of reports of disappearance submitted over the past year; many reports noted the disappearance of children, and in a few cases even people with mental and physical disabilities. Human rights defenders, relatives of disappeared persons, witnesses and legal counsel continue to be harassed and threatened. The Group stressed that 'anti-terrorist' activities are being used by an increasing number of governments as an excuse for not respecting the obligations of the Declaration on the Protection of all Persons from Disappearance [http://un.by/en/hr/releases/04-09-06-13.html].

The AHRC has frequently pointed to the lowering of international legal principles since the initiation of the 'war on terror'. Led by the rhetoric of the United States of America, many Asian countries have also enacted repressive national security legislation and made room for practices heretofore considered illegal and against the interests of protecting human rights and dignity. New patterns of enforced disappearance are among such practices [For further discussion see: AHRC AS-50-2003, 10 December 2003].

It is under these circumstances that the AHRC joins in the welcome to the new International Convention for the Protection of All Persons from Enforced Disappearance. The treaty was approved by the new UN Human Rights Council at its first session in June 2006, and is awaiting adoption by member states at the September 2006 session of the General Assembly. After 25 years of campaigning by families of disappeared persons, the new Convention contains an absolute prohibition on forced disappearances in both peace and war time. It also establishes an international mechanism to supervise states' compliance with their obligations and an urgent appeals procedure that can be used where forced disappearance is suspected. These and other aspects of the treaty are discussed in the following section.

B. Convention

Definition of disappearance

Article 2
For the purposes of this Convention, enforced disappearance is considered to be the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

Criminal offence and punishment

Article 4
Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.

Article 5
The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.

Article 7
1. Each State Party shall make the offence of forced disappearance punishable by appropriate penalties which take into account its extreme seriousness.

Prevention of disappearances

Article 2
2. No 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.
 
Article 6
1. Each State Party shall take the necessary measures to hold criminally responsible at least:
(a) Any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance…

2. No order or instruction from any public authority, civilian, military or other, may be invoked to justify an offence of enforced disappearance.

Article 17
1. No one shall be held in secret detention.

Article 23
1. Each State Party shall ensure that the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody or treatment of any person deprived of liberty includes the necessary education and information regarding the relevant provisions of this Convention…

2. Each State Party shall ensure that orders or instructions prescribing, authorizing or encouraging enforced disappearance are prohibited. Each State Party shall guarantee that a person who refuses to obey such an order will not be punished.

Remedies

Article 8
2. Each State Party shall guarantee the right of victims of enforced disappearances to an effective remedy during the term of limitation.

Article 11
3. 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.

Article 12
1. Each State Party shall ensure that 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 shall examine the allegation promptly and impartially and, where appropriate, undertake without delay a thorough and impartial investigation. Appropriate steps shall be taken, where necessary, 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.
 
2. Where there are reasonable grounds for believing that a person has been subjected to enforced disappearance, the authorities referred to in paragraph 1 shall undertake an investigation, even if there has been no formal complaint.

Article 24
1. For the purposes of this Convention, "victim" means the disappeared person and any individual who has suffered harm as a direct result of an enforced disappearance.
 
2. Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard…

4. Each State Party shall ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation.
 
5. The right to obtain reparation referred to in paragraph 4 covers material and psychological harm and, where appropriate, other means of reparation such as:
 
(a) Restitution;
(b) Rehabilitation;
(c) Satisfaction, including restoration of dignity and reputation;
(d) Guarantees of non-repetition.

Execution

Article 26
1. A Committee on Enforced Disappearances (hereafter referred to as the Committee) shall be established to carry out the functions provided for under this Convention…

Article 30
1. A request that a disappeared person should be sought and found on an urgent basis may be submitted to the Committee by relatives of the disappeared person or their legal representatives, their counsel or any person authorized by them, as well as by any other person having a legitimate interest.

C. Implementation

Legal aspects

In order for this convention to be successful, it is essential that all those countries that ratify it enact corresponding domestic legislation. Without this, there is no way for the conventions' provisions to be taken seriously.

Domestic legislation must also ensure that there are credible institutions of investigation. In the majority of Asian countries, criminal investigation is largely carried out by the police, in a shoddy manner. There are no independent bodies with the resources or authority to conduct proper investigations. (See Lesson Series 41 on a detailed study of the police in Asia). Without such institutions however, there is no way to fulfil the obligations undertaken by ratifying the convention; not only must laws be enacted, but institutions and personnel to enforce those laws must also exist. (The previous Lesson Series on witness protection showed that Thailand's Witness Protection Act was of little use when its Witness Protection Office had such limited resources and mandate.)

There should also be in place certain rapid actions to deal with enforced disappearances. Civil society groups must take responsibility to promptly and effectively document cases and send the information to human rights bodies and relevant government agencies. The government, upon receiving such information, should immediately condemn such actions through public statements, and ensure that efficient investigations are conducted urgently.

Reparation is an important aspect of providing remedies. For this reason, it must also be codified in law, with the relevant procedures set out to decide on suitable amounts of reparation, taking into account financial and other concerns. At present, reparation for human rights abuses in the majority of Asian countries is awarded arbitrarily, and tends to be a paltry amount.

Social aspects

As was mentioned in Lesson 1, a legal system on its own is not enough to protect against abuses or provide redress. Together with legal remedies there must be societal remedies as well. Two components to such remedies would be commemoration and prevention. Both of these are related to the concept of reparation, which is not just about financial compensation, as noted in article 24 (5) of the new convention.

Commemoration
It is important for society to recognize the wrong that was done to certain individuals, not only for the rehabilitation of the victims and their families, but also to remind society of how it failed in protecting them. Preserving the memories of these persons and the events that occurred is thus essential. This is particularly important in the cases of disappeared persons, whose families have no physical remains of their loved ones, which is very traumatic.

To respond to this trauma, the AHRC created a 'cyberspace graveyard' for the victims of disappearances throughout Asia in December 1998. For these persons who have no graves, an online graveyard was set up with their names, photos and whatever details possible: www.disappearances.org/. The right of burial is a primary right of all human beings. When bodies are thrown in rivers or burned by the roadside without the knowledge of their families, a gross act of indecency is committed.

The Wreath With No Name

This wreath of flowers
with no name attached
is for you
who has no grave.

It is placed
beside a road
as the earth which touched
you could not be found.

Forgive me
for making a memorial
by the wayside,
Forgive me

To commemorate and mourn the disappeared persons in Sri Lanka, on 4 February 2000 the Monument for the Disappeared Persons at Seeduwa, Sri Lanka was officially inaugurated.

This Monument for the Disappeared calls on the sympathy of the people, and enables members of victims' families to gain confidence and come out of their fear and seclusion. People now gather at the Monument to commemorate the loss of their loved ones; every year, religious events are held there, with close cooperation and understanding among different groups…

The Monument for the Disappeared speaks to how it is important to break silence and get public recognition of an issue. A monument is a very good way to do this, because it captures public imagination, and is much better than someone writing a book, for example. A monument symbolises not only remembrance of an event, but frustration at the failure of justice ['Bringing the Convention against Torture to India', article2, vol. 3, no. 2, April 2004, p. 29].

In fact, the Sri Lankan disappearances monument was inspired by a similar monument in Kwangju, South Korea built for the victims of the May 18 uprising.

In May 1999, for the first time, family members of the victims of democratic movements and enforced disappearances from Sri Lanka, Thailand, Philippines and East Timor visited Kwangju and met the family members of the victims of the Kwangju uprising. They took part in commemorative activities with the Kwangju mothers and fathers who had lost their children, forging a new link between the victims of the Kwangju uprising and the victims of other tragedies in Asia.

These visits by family members of the victims of disappearances from various Asian countries to Kwangju continue to this date. Inspired by the Kwangju spirit and the monument erected for the Kwangju victims, Sri Lankan activist Jayanthi Dandeniya who lost her fiancé and two brothers during state-sponsored disappearances in Sri Lanka in the late 1990s, initiated the construction of a monument for the disappeared in Sri Lanka. The inauguration ceremony of this monument in February 2000 was attended by Chung Su-man, the chairperson of the May 18 Uprising Bereaved Families Association. From then onwards persons from Kwangju annually attend the commemoration activities at the monument in Sri Lanka, in some instances even sponsoring the event [See Lesson Series 36 & 37 for detailed information on the uprising, the civil society response and its implications for South Korea and the rest of Asia).

Until today, there continue to be numerous events and activities organized in Kwangju to commemorate the uprising and the brave victims to gave their lives to the cause of democracy. These include annual events targeted at teaching school children the value of human rights, peace and democracy, such as speech and art competitions as well as a peace pilgrimage (to Kwangju). There are also education programs for teachers about the Kwangju uprising. Similarly, the May 18 Academy was established to conduct trainings and workshops for human rights activists from Kwangju and other areas. Koreans living abroad have also been invited by the May 18 Memorial Foundation to visit Kwangju and participate in workshops on the Kwangju uprising and democracy in Korea. Other organizations in Kwangju including the May 18 Memorial Foundation and Kwangju Citizens' Solidarity have been sending Kwangju youth to various Asian countries as interns to share the Kwangju spirit and to learn from the experiences of other countries.

It is only with such commemoration that prevention of such abuses is possible. It is only when the victims are remembered that society can say 'this will never happen again' in our future.

Questions For Discussion

1.    What are the strengths and weaknesses of the International Convention for the Protection of all Persons from Enforced Disappearance? Are there any points you feel have been left out?
2.    Discuss how you could organize a campaign in your country to pressure the government to ratify the convention. You may think of including the following groups in your efforts:
a.    Families and victims of disappearances
b.    Religious and faith based groups
c.    Intellectuals and professionals
3.   Discuss activities to commemorate disappearances in your society.