Credit: UN
The United Nations Committee on Enforced Disappearances (CED) held its fourth session from April 8 to 19, 2013 and reviewed State reports for the first time. Uruguay and France were the first States to be reviewed by the CED, which has now issued its “concluding observations” on those governments’ compliance with the International Convention for the Protection of All Persons from Enforced Disappearances. [UN]
The Committee on Enforced Disappearance is the UN treaty body responsible for overseeing implementation of the International Convention on the Protection of All Persons from Enforced Disappearances and is composed of ten independent experts. Like other UN human rights treaty bodies, the Committee reviews State implementation of treaty obligations through an interactive reporting process. The CED receives a report from the State, holds a public hearing between members of the Committee and State representatives, and then issues concluding observations containing recommendations on how the State can improve its implementation of the International Convention for the Protection of All Persons from Enforced Disappearances. NGOs and other civil society actors also have opportunities to participate, including by presenting an alternative report on the State’s compliance – commonly referred to as a “shadow report” – for the Committee’s consideration.
The CED also publishes its own annual reports, reviews inter-State complaints, receives requests for urgent action, and considers individual complaints against those States that have made the necessary declaration under Article 31 of the Convention. [CED; OHCHR] The CED holds two sessions per year.
Uruguay
Uruguay’s State Report provided a brief history of enforced disappearance during the 1973-1985 civic-military dictatorship and the subsequent passage of the “Impunity Act” in 1986, which labeled expired those crimes committed by military and police personnel. CED, Initial reports of States Parties due in 2011, Uruguay, UN Doc. CED/C/URY/1, 15 October 2012, paras. 11, 15. In 2011, the Uruguayan government adopted legislation re-establishing the State’s authority to prosecute crimes committed between 1973 and 1985 and suspended the statute of limitations. Id. at para. 19. Since then, Uruguay has carried out a number of investigations and amended its penal code to punish those responsible for enforced disappearances. Id. at paras. 34-38, 40-46. Uruguay’s report then detailed how, article by article, the State had implemented the Convention. Id. at paras. 51-253.
Three NGOs – Amnesty International, Asociación de Madres y Familiares de Uruguayos Detenidos Desaparecidos (Mothers and Family Members of Detained and Disappeared Uruguayans), and the Institución Nacional de Derechos Humanos y Defensoría del Pueblo (National Institution of Human Rights and Public Defense) – submitted shadow reports in which they raised several concerns regarding Uruguay’s penal code and called on the State to accept greater responsibility for enforced disappearances.
After hearing testimony from representatives of the Uruguay government on April 10, 2013, the Committee issued its concluding observations, including praise, critiques, and recommendations for Uruguay in its implementation of the Convention. The Committee lauded the fact that Uruguay has adopted all of the fundamental UN human rights instruments and their protocols, the Rome Statute, and the Inter-American Convention on Forced Disappearance of Persons, as well as having passed its Law of Cooperation with the International Criminal Court on the subject of the struggle against genocide, war crimes, and crimes against humanity, which recognizes that enforced disappearance is a permanent crime not susceptible to any statute of limitations as long as the victim’s location is unknown. CED, Concluding Observations on Uruguay, UN Doc. CED/C/URY/CO/1, 22 April 2013, paras. 3, 5.
The Committee also had several criticisms:
Definition and criminalization of forced disappearance
The range between minimum and maximum sentences for enforced disappearances is too wide and this leaves too much room for official discretion, the Committee noted. Additionally, the minimum sentence is too short and not in line with the Convention. Id. at paras. 11-12.
Criminal responsibility and judicial cooperation
Enforced disappearances that happened more than 30 years ago are being tried as homicides, not as forced disappearances. The Committee recommended that forced disappearances be tried as such. Id. at paras. 13-14. The Committee also asked Uruguay to take both legislative and administrative steps to guarantee judicial independence and effectively implement protection for victims, witnesses, and informants, and urged the parliament to pass a statute currently before it that would allow victims to intervene in the criminal process. Id. at paras. 15-18, 21-22. Uruguay should also include in all future treaties on extradition, including those currently in negotiation, the crime of forced disappearance. Id. at paras. 23-24.
Measures to prevent enforced disappearances
In order to more effectively prevent enforced disappearances, the Committee recommended that Uruguay more clearly regulate its constitutional right to habeas corpus. Id. at paras. 25-26. Furthermore, the Committee urged Uruguay to install a software program to help keep track of its jail and prison system and provide training about the Convention to all its justice officials. Id. at paras. 27-30.
Reparations and protection of children
While the Commission lauded Uruguay’s guarantee to provide reparations for victims of enforced disappearance, the State must still change its definition of victim and adopt a special crime of enforced disappearance of children, in conformity with the Convention. Id. at paras. 31-34. Lastly, while Uruguay recognized that the secretive adoption of enforced disappearance victims’ children – a practice documented in the 1970s and 1980s – is wrong, the Committee urged it to implement procedures to review and possibly annul those adoptions. Id. at paras. 35-36.
The Committee then outlined its recommendations going forward, including ensuring that all future legislation is in conformity with the Convention and Uruguay’s other international human rights obligations, and that special attention is paid to women and children due to their vulnerability as victims of enforced disappearance. Id. at paras. 37-38. Additionally, the Committee requested that Uruguay allow the participation of civil society in implementing the its recommendations and that the State follow up with the Committee regarding that implementation. Id. at paras. 39-42.
France
At the April 12, 2013 hearing, France’s representatives emphasized the government’s role in initiating the process of drafting the International Convention for the Protection of All Persons from Enforced Disappearances and expressed the State’s total support for the Convention. They also stated that while France does not currently have a stand-alone provision criminalizing enforced disappearance, the Senate was considering passage of draft law 736, which would bring France into compliance with the Convention in this regard.
The Committee members raised several concerns during the presentation. For example, they inquired into whether junior officers could refuse an order from a commanding officer to carry out an enforced disappearance, to which French representatives assured that a superior officer who ordered a lower officer to carry out an enforced disappearance would be charged as an accomplice and receive at least the same sentence as the actor, if not a more serious punishment as the mastermind of the crime.
Another issue the Committee raised was France’s ability to extradite individuals accused of enforced disappearances abroad, especially outside the European Union. French representatives clarified that France never extradites its nationals, but instead questions them itself. France has triple competence, under which it may hear cases involving a French victim, French defendant, or a crime committed on French soil. Under the principle of aut dedere aut judicare, or “extradite or prosecute,” if France does not have competence to hear a case, it will extradite the accused.
The State’s non-refoulement obligation to refrain from sending someone back to a country where he or she would face enforced disappearance was another important topic of discussion, as were the conditions in which immigrants are held in a “waiting zone” upon entering the country. While France does not guarantee non-refoulement based specifically on the risk of enforced disappearance, the government representatives stated that enforced disappearance is a violation of the right to life and freedom from inhuman or degrading treatment and, therefore, persons at risk of disappearance are protected by the guarantee of non-refoulement. With regard to the “waiting zone,” France assured the Committee that individuals are held there no longer than 48 hours before seeing a judge, that they have access to interpreters and legal services, and are able to apply for asylum.
The last major issue discussed was the dynamic between the right to privacy and the right to truth. In France, the right to privacy bars the government from revealing to other people whether someone is in custody or the reason for his or her detention. Government representatives recognized that while there are good reasons why someone would want that information to remain confidential, there are times when a family may rightfully need to know someone’s whereabouts. In such a case, the family may appeal to a public prosecutor to find out where the person is.
Other issues touched upon in the testimony include the scope of a victim’s participation in the investigation and prosecution, wrongful adoption of disappeared children and restoration of their identities, sentencing in general, and the difference in procedure for State and non-State actors accused of enforced disappearances. Available only in French are the State Report, two NGO reports, and the Committee’s Concluding Observations.