Committee on Enforced Disappearances Reviews Iraq and Montenegro
The United Nations Committee on Enforced Disappearances (CED) is currently holding its 9th session in Geneva, Switzerland from September 7th to 18th. The CED is reviewing State reports of Iraq and Montenegro regarding their implementation of the International Convention for the Protection of All Persons from Enforced Disappearance (Convention). During the session, the CED and each State engage in dialogue on the State’s national report and responses to the issues the CED requested the State to address; the Committee will also consider supplemental reports submitted by civil society organizations and national human rights institutions (NHRIs) concerning the States’ compliance with the Convention. The CED will then adopt concluding observations on the States’ implementation of treaty provisions.
The session agenda also includes consideration of requests for urgent actions and individual complaints, as well as the adoption of a list of issues for Burkina Faso, Kazakhstan, and Tunisia, based on its internal discussions and information received from civil society organizations and national human rights institutions (NHRIs), which will be considered in future sessions. The documents pertaining to each State may be found on the CED’s 9th session webpage.
Archived sessions of the CED will be available on the UN Treaty Body Webcast.
Review of State reports
The CED held its constructive dialogue with Iraq on September 7th and 8th. [OHCHR Press Release: Iraq]
In its list of issues, the CED asked Iraq to provide information about: the status of the Convention in relation to domestic law and whether the Convention can be directly invoked before the courts; whether the national legal framework permits derogation in times of war; the current status of a bill being drafted to implement the Convention, including a timeline for its adoption; efforts to investigate abuses, including enforced disappearances, that have allegedly been committed by the Islamic State and similar groups; measures adopted to prevent enforced disappearances; and what types of reparations have been given and to whom. Committee on Enforced Disappearances, List of issues in relation to the report submitted by Iraq under article 29, paragraph 1, of the Convention, UN Doc. CED/C/IRQ/Q/1, 16 March 2015.
Iraq provided responses to the list of issues including the following: international treaties that are ratified and published are binding, and therefore the Convention can be directly invoked by victims, prosecutors, or judges in domestic matters; the Ministry of Human Rights leads a committee that is responsible for investigating cases of enforced disappearance, which has resulted in determining the fate of close to 3000 individuals; and statistics about the number of enforced disappearances and other abuses that have been committed by the Islamic State in Iraq are unavailable. Iraq also noted that the Iraqi High Criminal Court has convicted perpetrators of enforced disappearance as a crime against humanity in five out of 12 cases it has tried, explained that the draft implementation bill is currently before the General Secretariat of the Council of Ministers for comments and that a second bill that aims to ensure that compensation is provided to victims of enforced disappearance is currently before the Chamber of Deputies, and discussed that the Protection of Mass Graves Act is being expanded to cover a greater temporal span. See Committee on Enforced Disappearances, Replies of Iraq to the list of issues, UN Doc. CED/C/IRQ/Q/1/Add.1, 18 June 2015.
Alkarama (shadow report) and Amnesty International (shadow report) submitted shadow reports concerning Iraq’s implementation of the Convention. The Iraqi High Commission for Human Rights, the NHRI in Iraq, also submitted a report with recommendations and information on its role in combatting enforced disappearances.
The CED held its constructive dialogue with Montenegro on September 8th and 9th. [OHCHR Press Release: Montenegro]
In its list of issues, the CED asked the State to provide information about: why the State asserts that the four war crimes cases currently in the courts are not related to enforced disappearances; the absence of an autonomous definition of enforced disappearance in the Criminal Code; measures taken to bring to justice perpetrators of enforced disappearances that may have occurred in Montenegro’s past including steps taken to investigate the whereabouts of 61 persons who have been reported as missing; who is responsible for providing compensation to those who have been harmed because of enforced disappearance; and whether the law provides for restitution, rehabilitation, satisfaction, and guarantees of non-repetition to these victims. See Committee on Enforced Disappearances, List of issues in relation to the report submitted by Montenegro under article 29, paragraph 1, of the Convention, UN Doc. CED/C/MNE/Q/1, 16 March 2015.
In its reply to the list of issues prior to the constructive dialogue, Montenegro distinguished the war crimes cases from enforced disappearance on the basis that they did not fit the definition of enforced disappearances under the Convention; discussed a judicial reform that involves the creation of a special prosecutor’s office to prosecute war crimes; explained that, under certain circumstances, Montenegro’s criminal law allows for the prosecution of non-nationals who have committed crimes against another State or a foreigner outside of Montenegro; provided details of the law regarding the deprivation of liberty; and noted that a Government Commission for Missing Persons has been established with the aim of addressing the issue of individuals that are missing from conflicts in the former Yugoslavia. See Committee on Enforced Disappearances, Replies of Montenegro to the list of issues, UN Doc. CED/C/MNE/Q/1/Add.1, 13 July 2015.
Amnesty International submitted a shadow report to the CED regarding Montenegro’s implementation of the Convention. Its report expresses concern that impunity continues to exist through the failure to bring to justice those responsible for disappearances during the armed conflicts from 1992-1995 and 1998-1999. It also criticizes the Montenegrin Criminal Code’s inadequate definition of enforced disappearances, the lack of prompt investigation into cases of enforced disappearances, and the failure to provide reparations to victims.
Adoption of List of Issues
Burkina Faso submitted its report for consideration by the CED, in which it details the legal mechanisms in place to implement the Convention. The report explains that neither internal political instability nor states of emergency can be used as bases to derogate from the Convention; notes that enforced disappearance is not specifically considered a crime in Burkina Faso’s national legislation but that the criminal code currently under revision will bring national legislation into line with the Convention; delineates the statute of limitations for crimes related to enforced disappearances under its national laws; discusses protections that are provided to complainants, witnesses, and defense attorneys of victims of enforced disappearances; discusses protections that are in place for those deprived of liberty, including the prohibition on incommunicado detention; and notes that plans are in place to conduct training and awareness-raising activities with respect to the Convention. See Committee on Enforced Disappearances, Consideration of reports submitted by States parties under article 29, paragraph 1, of the Convention: Burkina Faso, UN Doc. CED/C/BFA/1, 8 December 2014.
In Kazakhstan’s report for consideration by the CED, the State discusses several reforms that it has made or is in the process of making including: a new criminal code that is currently under consideration by the Parliament which would expand criminal liability for willful failure to inform family members of the details of a suspect’s detention, improvements to record-keeping, and a telephone hot-line to fight trafficking in persons. The report also notes that the Ministry of Internal Affairs has organized various courses aimed at fighting illegal migration and trafficking; that legislation provides for a range of reparations measures for victims of enforced disappearance; and that it has adopted various measures, including increased penalties for sexual offenses that are committed against minors, to protect children. See Committee on Enforced Disappearances, Consideration of reports submitted by States parties under article 29, paragraph 1, of the Convention: Kazakhstan, UN Doc. CED/C/KAZ/1, 7 July 2014.
Tunisia submitted its report for consideration in which it highlights the reforms it has made in the period of transition since January 2011, noting that the first international treaty that it ratified after the revolution was the International Convention for the Protection of All Persons from Enforced Disappearance. Tunisia notes the following: its current criminal legislation does not prohibit enforced disappearance, the Tunisian courts have not issued decisions with respect to three pending cases of victims of enforced disappearances, the Truth and Dignity Commission was established to investigate past instances of enforced disappearance where the fate of the victim is unknown, and various government and non-governmental bodies are charged with overseeing detention facilities to ensure that they comply with the law. See Committee on Enforced Disappearances, Consideration of reports submitted by States parties under article 29, paragraph 1, of the Convention: Tunisia, UN Doc. CED/C/TUN/1, 31 October 2014.
The Committee on Enforced Disappearances is one of ten committees of experts established to assess States’ implementation of specific UN human rights treaties.
The CED consists of 10 independent experts who are nationals of State parties to the Convention elected to four-year terms. States are required to submit an initial report on measures they have taken to implement the Convention within two years of acceding to the treaty, and to submit periodic reports thereafter. States may make declarations under Article 31 of the Convention authorizing the CED to consider individual complaints of human rights violations against the State.
Further, the CED is empowered to consider requests for urgent action concerning a disappeared person. If the CED accepts the request, it asks the relevant State to provide information about the disappeared person and may recommend that the State take all steps necessary to locate the person. The CED may also order interim measures, formally requesting the State to take action to avoid allowing irreparable harm to the victim.