HUMAN RIGHTS COUNCIL ADVISORY COMMITTEE DISCUSSES ISSUE OF MISSING PERSONS

The Human Rights Council Advisory Committee this morning took up, in the context of its agenda item on requests of the Human Rights Council to the Committee, the issue of best practices on missing persons. The Committee also briefly returned to its discussion on the elimination of discrimination against persons affected by leprosy and their family members which it had begun the day before.

Wolfgang Stefan Heinz, Committee Expert and Chairperson of the Drafting Group for the study on best practices on the issue of missing persons, in an overview of the most recent developments on the text, said the progress report had been sent to the Human Rights Council, which had expressed quite some support and requested a finalisation of the report. The next progress report would be issued in January. There would be another exchange of opinions and experiences here at this session, on which the next progress report would be based. The final report would be handed in to the sixteenth session of the Human Rights Council.

Latif Huseynov, Committee Expert and member of the Drafting Group, said the progress report mainly focused on the legal obligations of States and other parties to an armed conflict, with respect to missing persons. Since the Drafting Group had submitted the report to the Human Rights Council, it had continued to work on the draft and had incorporated comments made by governments and non-governmental organizations. The final report would contain specific recommendations on how to prevent and protect persons from disappearances.

During the ensuing discussion, Experts raised, among other things, the decision to limit the consideration of missing persons to situations of armed conflict. Including some mention of the statutes and rulings of the International Criminal Court would be beneficial as they clearly stated that these acts were violations of international law. Amnesty was also a tricky matter, and amnesty laws should be banned, with an end put to violators of human rights putting in place amnesty laws that were in their favour, which issue should also be included in the text. The concept of armed conflict was a highly complex concept, and there should be more attention to this issue, as the text remained ambiguous. Moreover, there was a legitimate right to reparations and also the right of families to have more information on their relatives that had gone missing. The paper was a very good paper, many Experts agreed, and it should just be finalised to concentrate on "best practices" that could be adopted to prevent enforced disappearances from arising.

The Committee also heard an explanation from the Secretariat with regard to an issue raised yesterday by Committee Member Halima Embarek Warzazi, with regard to an invitation to nominate a Committee Expert to a Working Group. The issue was mainly one of poor communication between two services, and there had been no pressure. The matter would continue to be investigated.

Speaking this morning in the discussion on missing persons were Miguel d'Escoto Brockmann; Vladimir Kartashkin; Jean Ziegler; Emmanuel Decaux; José Antonia Bengoa Cabello; Chung Chinsung; and Dheerujlall Seetulsingh. Also speaking was Olivier de Frouville, member of the Working Group on Enforced or Involuntary Disappearances. Countries taking the floor included Argentina, Azerbaijan, Armenia, and Algeria. Also speaking were the non-governmental organizations North-South XXI, and Indian Movement Tupaj Amaru.

Speaking on persons affected by leprosy was the delegation of Japan.


The next public meeting of the Advisory Committee will be at 10 a.m. on Wednesday, 4 August, when it will be taking up, under the same agenda item, the right of peoples to peace, and enhancement of international cooperation in the field of human rights.


Document

The progress report of the Human Rights Council Advisory Committee on best practices on the issue of missing persons (A/HRC/14/42) mainly focuses upon the international legal obligations of States and parties to an armed conflict relating to the issue of missing persons. For the final report, the drafting group will have to thoroughly analyse the replies received from the States and, based upon this analysis, identify the best practices in the matter of missing persons. For the purposes of this study, “missing persons” are those whose families are without news of them and those who are reported, on the basis of reliable information, unaccounted for as a result of an international or non-international armed conflict. Under both international humanitarian law and human rights law, States are obliged to take measures to prevent persons from going missing. The efficient treatment of missing persons requires the establishment of competent mechanisms at various levels, and it might be necessary to put into place mechanisms ensuring coordination and an information-sharing process between the parties concerned.

Discussion on Missing Persons

WOLFGANG STEFAN HEINZ, Advisory Committee Vice-Chairperson, presenting the progress report on best practices on the issue of missing persons, said the progress report had been sent to the Human Rights Council, which had expressed quite some support and requested a finalisation of the report. They were advancing towards the end of the process. Positive remarks had been received from a number of Governments, such as Azerbaijan, Armenia and Cyprus. Additional responses to the questionnaire had been received, and this was particularly interesting with regard to the responses received from Argentina, where there had been considerable changes over the last five to six years. The next progress report would be issued in January. There would be another exchange of opinions and experiences here at this session, on which the next progress report would be based. The final report would be handed in to the sixteenth session of the Human Rights Council in March 2011.

LATIF HUSEYNOV, Advisory Committee Expert, thanked Mr. Heinz for his opening statement and his update on the progress made by the Drafting Group. The progress report mainly focused on the legal obligations of States and other parties to an armed conflict with respect to missing persons. Since the Drafting Group had submitted the report to the Human Rights Council, it had continued to work on the draft and had incorporated comments made by governments and non-governmental organizations. The final report would be submitted to members of the Advisory Committee in November 2010 in order to be presented and reviewed at the January 2011 session. He added that the report would contain specific recommendations on how to prevent and protect persons from disappearances.

MIGUEL D'ESCOTO BROCKMANN, Advisory Committee Rapporteur, said he regretted the decision to limit the consideration of missing persons to situations of armed conflict, and felt compelled to draw attention to what appeared to be a serious omission in the text, even within its confines of armed conflict. The fact was that today, a great many disappearances took place in times of occupation, and this was the situation, of course, in Iraq, Afghanistan and in an ever-increasing manner in Honduras.

VLADIMIR KARTASHKIN, Advisory Committee Vice-Chairperson, said that he had read the draft document carefully and suggested deleting some of the language, which he believed distorted some of the key messages. With regard to the final report, he suggested that more emphasis be placed on the Convention on Forced or Involuntary Disappearances. It would be equally important to study the activities of the Committee on Forced or Involuntary Disappearances, which was established to work on this particular issue. Furthermore, including some mention of the statutes and rulings of the International Criminal Court would also be beneficial as they clearly stated that these activities were violations of international law. Previous case law should be specifically referred to rather than mentioned in passing. However, in broader terms, he commended the work of the Drafting Group and hoped that today’s debate would be fruitful in leading to the adoption of the draft by the Advisory Committee and the Human Rights Council.

JEAN ZIEGLER, Advisory Committee Expert, said the work done by the Drafting Group was entirely note-worthy - comments made on the text drafted by States on the Convention on Forced or Involuntary Disappearances were extremely useful when implementing a convention. This could be seen on the topic of the right to food, where extraordinary steps forward had been made in implementing State policies. There were comments being made now that could go someway forward in helping to implement the Convention, and this was an essential part of the exercise in driving forward State policy. It was true to say that these two texts noted that disappearances were an ongoing crime, with no conclusion to the crime. The State was responsible for all the consequences of disappearance, according to the text. With regard to the courts, Mr. Ziegler asked why amnesty was not mentioned in the text, as those in power, before they lost it, could implement an amnesty law, and this could make the whole issue a dead letter. Amnesty was a tricky matter, and States themselves recognized this, and it would have a practical influence on State policy. Amnesty laws should be banned, and there should be an end put to violators of human rights putting in place amnesty laws that were in their favour. This issue should be included in the text.

EMMANUEL DECAUX, Advisory Committee Expert, thanked the Drafting Group for their efforts. He said he would address some of the linguistic subtleties that were lost in the French translation. There was a nuance between missing persons and disappeared persons, which did not come through in the French version. Moreover, there was a legitimate right to reparations and also the right of families to have more information on their relatives that had gone missing. He expressed gratitude that Mr. de Frouville was present at today’s session as it was part of the Advisory Committee’s mandate to collaborate with different UN agencies and departments in its work. Stressing the role of international law would be incredibly important to this report and should be given more weight. There was also a need to make a clearer distinction between accidental and enforced disappearances and the report should focus on civilians and military personnel that had disappeared or gone missing during conflict situations. Lastly, he reminded the Drafting Group that their approach should be rooted in best practices and the report should provide clear recommendations to all involved parties based on hard law.

JOSE ANTONIO BENGOA CABELLO, Advisory Committee Expert, said the debate was taking on quite an approach, which he shared. When the issue was initially discussed, it had appeared to be even more complex - the Committee had to think about the empirical reference that it imagined was involved in all of these different elements. The concept of armed conflict was a highly complex concept, and there should be more attention to this issue in the preamble. In paragraph ten, it said that "for the purposes of the study, missing persons were those whose families were without news of them", and this was self-evident and entirely clear. It opened out the issue to all aspects of disappearances, including those in so-called "open" armed conflicts, and thus introduced an element of ambiguity, as it was not clear whether it was referring to situations such as that suffered under Augusto Pinochet in Chile. The text was ambiguous in several regards, and did not seem to cover situations of brutal repression by the State bodies, or activities by armed groups. There was a sociological problem, and what was being referred to needed to be spelled out much more clearly. When reading the text, Mr. Bengoa got the impression that it did not really cover the situation of the disappeared in South America. The problem was complex. The issue needed more work and more details.

CHINSUNG CHUNG, Advisory Committee Expert, apologized for not contributing more actively to the draft report, as she was herself a member of the Drafting Group. She said that the report should pay special attention to more vulnerable persons, such as women, children and older persons. Maintaining a gender perspective on the issue of missing persons in conflicts was important. She therefore suggested that a separate chapter be included on vulnerable persons, with further information on special measures that could be taken to protect these groups. In addition, greater focus should be given to gender crimes in times of conflict.

DHEERUJLALL SEETULSINGH, Advisory Committee Vice-Chairperson, said he thought it was a good paper. He believed that the Advisory Committee should examine the mandate that the Human Rights Council had given it, and consider "best practices" in this issue, which meant what were the preventive measures and remedial measures that should be adopted to avoid this type of situation. The difficulty was compounded by the existence of the Convention on Involuntary or Enforced Disappearances. When looking at article two of that Convention, which contained a definition of enforced disappearances, it seemed that the Committee's mandate was clearer. The situations described by Mr. Bengoa came more under enforced disappearances, where it was a State or a State agency that was guilty of the enforced disappearances. The paper was a very good paper, and it should just be finalised and concentrate on "best practices" that could be adopted to prevent this kind of situation from arising.

OLIVIER DE FROUVILLE, Member of the Working Group on Enforced or Involuntary Disappearances, thanked the Drafting Group for their excellent work. The draft report raised a number of interesting points and would serve as a useful platform for discussion. He admitted that terminologies could be quite difficult and oftentimes translations did not capture the true meaning of certain terms. There were different causes for enforced disappearances and these were what needed to be studied and addressed. The issue of enforced disappearances involved liability, which was not necessarily the case with missing persons. Most enforced disappearances occurred in situations of internal armed conflict and very rarely in times of peace. He also highlighted the distinction between a humanitarian and human rights approach to missing persons. The humanitarian approach looked for bodies and tried to identify the whereabouts of missing person whereas the human rights approach looked for the causes and culprits behind such disappearances. The latter approach was something that the Red Cross was actively working on and there was some geographic overlap between the work of the Red Cross and that of the Working Group on Enforced or Involuntary Disappearances.

Mr. de Frouville also recommended that the report of the Drafting Group include some mention of the right to truth. Family members had a right to know what had happened to their relatives. On the issue of good practices, he stated that they needed to be in line with international human rights law and humanitarian law. For this reason, the recommendations of the report needed to be consistent with existing international laws. Finally, he added that any legislation adopted by States needed to be specific to missing persons.

SEBASTIAN ROSALES (Argentina) said the document was clear and some of the contributions made by Argentina had been included. The question of definition and the situation of enforced disappearances were problematic in the Spanish language version. However, from the legal point of view, there was a clear definition. The question of responsibility was important. The Drafting Group's approach had been to focus on complementarity - this was an important approach, but it was a significant difference for Argentina. The second matter was best practices - referring to Argentina, executions were certainly part of the historical experience. Bearing in mind complementarity, some of the Argentinean experience could be used in this regard. Several countries had experience in re-establishing truth and justice - it was a long road, however. Today, in Argentina, all who were involved in serious and systematic violations, including disappearances, were being prosecuted - there was no duality between truth and reconciliation proceedings, and Argentina was proud of that. It was all part of a process which lasted many years.

NURIAN ALIYIEV (Azerbaijan) thanked the Drafting Group for their hard work. Azerbaijan had already expressed its views on the report and hoped that the Drafting Group would focus more attention on the right to truth. It also requested the views of the Drafting Group on the establishment of an international monitoring mechanism that would help to enforce and promote best practices in situations of armed conflict around the world.

VAHEH GEVORGYAN (Armenia) said Armenia welcomed the efforts of the Drafting Group to concentrate on the State obligation to prevent people from going missing. There should be a clearer distinction between the different and inter-relating obligations such as recovery and rehabilitation. The obligation of the State to report military casualties should be included in the text, as this would prevent the State from hiding situations of missing persons. In some cases the report raised the question of the hierarchy of application of regimes. With regard to the element on application of the right to truth, the report established an obligation of States to identify populations at risk- this identification could be mandatory, and the drafting group should explain whether there was a risk of possible human rights violations in forcible identification of civilian populations, both in international and internal armed conflicts, and Armenia wished to hear more about good practices in this regard.

AHMED SAADI (Algeria) commended the Drafting Group for their efforts. Algeria suggested that the Drafting Group needed to avoid any overlap with other work being done on this subject. In the wording of the report, there was no need to repeat what had already been said. It made more sense to provide States and other parties to the conflict with clear guidelines and mechanisms to adopt on missing persons. The extremely varied contexts of armed conflicts should be taken into consideration when analysing good practices and, in this regard, there should not be universal measures applied to all conflict situations.

CURTIZ DOEBBLER, of North-South XXI, said the work of the Drafting Group on this draft report was appreciated. Many of the members of the Advisory Committee had been members of civil society, and the issue of missing persons was one that struck at the heart of civil society. It was an issue of great importance, and civil society appreciated the attention shown to the issue by the Drafting Group and the Committee. However, it was still not clear why the report of the study had been limited only to armed conflict and not expanded to situations of occupation - it would be beneficial to understand why there was a decision to restrict the approach. To encourage more input from States, Committee members directly related to the study might undertake informal consultations with States. Perhaps the study's finalisation could benefit from the mention of particular situations, as best practices often required identification of the problems in order to see how they had been addressed.

LAZARO PARY, of Indian Movement Tupaj Amaru, paid a warm tribute to Miguel Alfonso Martinez, who recently passed away. He had made a great contribution to the development of human rights in the United Nations system. With regard to the report, there needed to be a more indepth understanding of national and international laws with respect to missing persons. Coup d’états carried out by Latin American armed forces had further exacerbated the situation of missing persons. And, moreover, the incidents of 11 September had given the United States free range to attack and detain terrorist suspects. On this particular issue, the European Union had turned a blind eye to CIA kidnappings as well as secret flights with detainees that passed through European territory. In conclusion, the Indian Movement Tupaj Amaru said that States had the moral and political obligation to enforce the provisions of international treaties and hopefully the final report of the Drafting Group.

LATIF HUSEYNOV, Advisory Committee Expert, in concluding remarks on the discussion, said he wished to thank all the Experts who had made comments and put questions, as well as the Government representatives and those of non-governmental organizations who had made valuable contributions and comments. Human Rights Council resolution 7/28 clearly indicated the Committee's mandate and task. The resolution clearly indicated that the Committee should limit its study to armed conflicts, even though there was no explicit reference to the term "armed conflicts" in the part of the document referring to the task of the Advisory Committee. However, the document referred several times to international and non-international armed conflicts and the spirit of the document clearly indicated that the spirit of the study should be limited. In the document, there was no reference to the International Covenant on Enforced or Involuntary Disappearances. Therefore, the Drafting Group did not go beyond the scope defined by the Human Rights Council, and focused only on missing persons as a result of armed conflicts. There could therefore be certain gaps in the study, and certain issues may not have been fully studied or investigated, but this was due to the limited scope of the study.

The study did cover the issue of foreign occupation. With regard to amnesty, this was a very complex issue, not from the point of view that it was difficult to research, nor as a legal issue as there was no sufficient legal framework, but practically, as it was difficult to reconcile amnesty and the obligations of States in the matter of missing persons. The Geneva Conventions were applicable in armed conflicts, but the only way the provisions of the conventions and international humanitarian law were immediately and effectively applicable in an armed conflict was if certain rules and measures were adopted during peace time. The integration of the gender perspective was insufficient, and should be remedied. Best practices should be in compliance with international law, and this had been the methodology and approach of the drafting group. Mr. Huseynov concluded by saying that he hoped to produce a final report that would include all the comments and suggestions made.

WOLFGANG STEFAN HEINZ, Advisory Committee Vice-Chairperson, only had one point to add. The Secretariat had postponed the next Advisory Committee’s session to March 2011, rather than in January, which he would have preferred. In this regard, there still needed to be some internal discussion on scheduling to see whether or not the report should still be finalized in January, as originally planned, in preparation for the Human Rights Council’s March session.



Statement on Persons Affected by Leprosy

AKIO ISOMATA (Japan) said Japan understood that it was unusual for a Government observer to take the floor again when the issue was still under discussion, but the situation was not usual for Japan. With all due respect for the dedicated work by the Committee, Japan, as a leading expert on the issue of leprosy, was greatly confused by the ongoing deliberation in the Committee on principles and guidelines. Very careful steps had been taken so far towards the finalisation of the principles and guidelines, including gathering views from relevant stakeholders, as mandated by the Human Rights Council. As Japan stated yesterday, as a leading sponsor of this issue, Japan had conducted dialogue with various stakeholders, and had believed the earlier draft had duly reflected these, and struck an appropriate balance between views and opinions. The Government was concerned that if drastic changes were made to the near-final draft, then the whole process of consultations with stakeholders would have to start again. It was up to the Committee to make appropriate changes for finalisation of the draft, but it should also show understanding and take steps with extreme caution, and a carefully coordinated approach between the Committee and other stakeholders was necessary to bring good results in moving forward on the latest draft. At this stage, Japan had strong reservations with regard to certain paragraphs of the guidelines, whilst noting ongoing discussions.

Following points of order raised by two Experts of the Committee in this regard, Japan was asked to reserve this comment for a more appropriate time as the results of yesterday’s meetings by the Working Group had not yet been transmitted to the plenary.


For use of the information media; not an official record

AC10/014E