Summary of comments by F.I.D.H. on the draft text 21st June 2004

04/10/2004
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Working Group to draft an instrument for the protection of persons against enforced disappearances

Article 1 bis

"No-one shall be subjected to enforced disappearance would be better than "No-one may be subjected to enforced disappearance

Article 2

The FIDH agrees that this article should be inserted in the draft.

Article 2 bis

The FIDH agrees with this wording.

Article 7

The FIDH strongly supports reintroducing a measure to ban the amnesty on enforced disappearances. The lack of such a measure could be interpreted as a negative precedent in the construction of a customary rule, currently in preparation. The group’s refusal to prohibit the amnesty of such a serious violation as enforced disappearances would considerably weaken the scope of the instrument by enabling states to paralyse all their penal obligations and by opening up the possibility of impunity for the perpetrators of the disappearances.

It should be noted that, in his report on the creation of a special tribunal for Sierra Leone, the Secretary General of the UN wrote "While recognising that amnesty is an accepted legal concept and represents a gesture of peace and reconciliation at the end of civil war or internal armed conflict, the United Nations has affirmed at all times that it could not be granted with regard to international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law" (S/2000/915). The Lomé Agreements were signed with this express reservation which can be found in the Statutes of the Tribunal.

Lastly, in its decision Kondewa - Decision on lack of jurisdiction / abuse of process: Amnesty provided by the Lomé Accord of 25th May 2004, the appeal chamber of the Special Tribunal for Sierra Leone validated this reserved interpretation judging that its statute complied with the Lomé agreements on this point.

It should also be recalled that, in the context of the jurisprudence of the European Court of Human Rights, right to effective recourse granted by article 13 of the Convention extends to recourse in criminal matters when it is a question of serious violation of human rights (torture, disappearance in particular).

For a relatively comprehensive overview of recent developments in this matter, see the study by Mme Diane Orentlicher on the question of impunity (E/CN.4/2004/88, B - Right to justice, §§ 24-32). The independent expert concludes in paragraph 32:

"The evolving situation in Argentina, Sierra Leone and other countries shows that, both for reasons of caution and as a matter of principle, states resist requests for amnesty which constitute violations of their international obligations even if the context does not enable them to press charges immediately."

At this point in time, it should not be considered that the question has been settled. There is nothing in the Group’s report to indicate that consensus has been achieved on this question (v. doc. E/CN.4/2004/59, §§ 73-80).

Article 9 § 1 c)

The FIDH wonders about the meaning of the working "and that this State Party believed it appropriate". Is it possible to talk about the "timeliness of of proceedings" in the context of enforced disappearances?

Article 9 § 2

The FIDH considers it appropriate to determine precisely what is meant by "extradites...or transfers to another State". The concept of "transferring" should not be interpreted as authorising the State to get round the procedure for extradition. It must be taken as meaning an alternative procedure to that of extradition, governed by a specific international convention and including equivalent guarantees for the accused to those offered him in the framework of extradition procedure.

The part of the sentence "or to an international criminal tribunal whose jurisdiction it has recognised" does not seem suited to the case of ad hoc tribunals, to the extent that the competence of these tribunals is not founded with the consent of the States, but on the authority ot resolutions of the Security Council which set them up. Similarly it seems difficult to reconcile this with the hypotheses whereby the International Criminal Court is able to exercise its competence on a person detained by a State which has not ratified the statute (when the person pursued has the nationality of the State Party or when the crime was committed on the territory of a State Party). The required State may well in effect proceed with the transfer in the light of an ad hoc agreement without having to be party to the Statute and "recognising the competence" of the Court.

Same comments regarding similar working in article 11 § 1.

Article 9 § 3

The FIDH proposes deleting this measure which it believes to be unclear and not really useful.

Article 10 § 1

The FIDH proposes deleting "or take other legal measures" and to delete the remainder of the paragraph. Holding in custody a person suspected of enforced disappearances is the only way of "ensuring his or her presence". The seriousness of the crime justifies prolongation of provisional custody beyond the "time ... necessary to enable criminal or extradition proceedings to be instituted".

Article 11 § 3

The FIDH agrees with the reintegration in the text of a measure equivalent to article 16 § 2 of the 1992 Declaration the aim of which is to exclude persons accused of enforced disappearances being tried by courts martial.

Article 12

The FIDH believes that it is vital that a paragraph similar to paragraph 4 of article 13 of the 1992 Declaration be reintegrated in the text; this paragraph foresees:

"The enquiry results are communicated on request to all persons concerned unless this in any way compromises the pending judicial enquiry."

Paragraph 6 of article 11 pf the draft Convention is also relevant:

"The enquiry results are communicated on request to all persons concerned, unless this seriously compromises the pending judicial enquiry. However, the relevant authority regularly and forthwith informs next of kin of the disappeared person of the result of investigations concerning the disappeared person’s fate and where that person is."

In the 1st paragraph, the FIDH proposes adding the words "and independent" between "competent" and "authority".

Article 22

The FIDH would like the Working Group to explain, when it comes to adopting this article, what it understands by "direct harm", and that this interpretation be included in the report. It is appropriate to ensure that the concept of "direct harm" in effect at least covers material or moral damage suffered by the direct victim of the disappearance as well as of the next of kin.

Article 25

The FIDH believes it would be appropriate to reinsert in this measure paragraph of article 18 pf the draft convention drafted by the Sub-Commission. As it stands, the text appears unclear on the way in which "abducted or appropriated child" is returned to his family.

Article II C bis § 1

The FIDH proposes deleting the word "grave" in front of "breaches". The monitoring body must be able to identify all breaches of the instrument by means of a procedure of individual communications. The idea of limiting its competence to "serious" breaches may cause problems of interpretation and constitute an unforeseen restriction, compared to existing procedures of individual communications.

In c), the meaning of "effective" should be clarified, in order to confirm that this includes all traditional causes for satisfying the rule of exhausting all means of internal recourse, namely: absence of recourse, ineffective recourse (see article 22 § 5 b) of the Convention against torture), length of recourse procedure beyond reasonable expectations (idem and article 5 § 2 b) of the optional Protocol of the International Pact on civil and political rights).

Article II C bis § 3

This measure does not appear to be entirely necessary. If it is maintained, then the expression "make a recommandation" should be replaced by "submit its findings" in c).

Article II C bis § 4

Paragraph 3 of article 5 of the first optional Protocol of the International Pact on civil and political rights seems to contain more appropriate working:

"The Committee submits its findings to the State Party concerned and to the private individual".

Article II-F § 2

The procedures outline in this paragraph are those mentioned in articles II B (search procedure) and II C (on the spot enquiry) and not II C bis (individual communications).

RESERVATIONS

The FIDH proposes inserting a new Article III-D which would be as follows:

1. Any State Party may, at the time of signing [the present instrument] or when depositing its ratification instrument, express a reservation regarding a specific measure of [the instrument], to the extent that a law in force on its territory is not in compliance with that measure. The reservation includes a short summary of the law in question.
2. General or potestative reservations are not accepted under this article, nor are reservations which are incompatible with the aims of the treaty or which would result in paralysing the function of the [monitoring body].
3. The State Party which has expressed the reservation takes all measures necessary to make its national legislation comply with this instrument, in order to withdraw its reservation as quickly as possible.
4. Reservations may be withdrawn at any time by means of notification to the Secretary General. Notification will take effect on the date of receipt.
5. [The monitoring body] ensures that the State with the reservation respects the conditions set out in paragraphs 1 to 3 of this article.

Comment :

The first paragraph is based on the wording of article 57 of the European Convention on Human Rights. It consequently limits the scope of applications of potential reservations, as these can only concern a "specific measure" and cannot be intended to cover a "law in force on" the territory of the State Party which does not comply with this measure.
Paragraph 2 lists the main conditions for valid reservations as outlined in existing conventions (Venice Convention on the right of treaties for the main criterion of compatibility of aims of the treaty,; ECHR. for the "general nature of the reservation"; Convention for the elimination of racial discrimination by "paralysis" of the monitoring body), or the jurisprudence of different jurisdictional bodies (International Court of Justice, European and US Courts of Human Rights) or quasi-jurisdictional (UN Committee on Human Rights, Inter-american Commission on Human Rights).
Paragraph 3 grants a provisional nature to reservations, based on the principle that expressing a reservation is aimed at achieving a transition period for adaptation to the law of the convention. The practice of the Council of Europe, in particular, is along the lines of this principle of a progressive movement and many States moreover express reservations which foresee the date of their expiry.
Paragraph 4 outlines a classic measure which outlines the means whereby a State may at any time withdraw its reservation.
Lastly paragraph 5 entrusts the monitoring body to ensure compliance by the State expressing the reservation of the validity conditions for reservations outlined in paragraphs 1 to 3. More detail could be given on the procedure, for example in foreseeing that the monitoring body be responsible for evaluating whether reservations comply with these measures immediately after the entry into force of the instrument for the State expressing the reservation the, subsequently, on a periodical basis, to ensure that the State has indeed taken all steps necessary to ultimately withdraw its reservation. It could also be foreseen that the monitoring body propose to the State alternative wording for its reservations which it believes would respect the conditions of this article. It may be preferable to let the monitoring body define its own working methods on the basis of its bye-laws thereby avoiding what would obviously be complicated negotiations when drafting the instrument.

Extra translation

The FIDH believes that a clause concerning reservations should be inserted in the instrument. Silence is taken as an implicit reference to the regime of the Vienna Convention, which is insufficient to say the least since it concerns so-called "objective" treaties as well as those on issues relating to human rights

This clause would simply state that no reservation is permitted. It would also entrust the monitoring body with ensuring that when the instrument enters into force, the State which has ratified or adhered has not made the ratification or adhesion subject to a reservation. In the event of such a reservation being expressed, the entry into force of the instrument concerned is to be deferred until such time as the State agrees to withdraw its reservation.

If it is not possible to reach consensus within the Working Group regarding a complete ban on reservations, the FIDH would propose inserting a new Article III-D as below:

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