HUMAN RIGHTS COUNCIL ADVISORY COMMITTEE DISCUSSES PREPARATION OF STUDY ON BEST PRACTICES ON QUESTION OF MISSING PERSONS

Human Rights Council Advisory Committee
MORNING

27 January 2009


Committee Begins Discussion on Integrating the Rights Of Persons With Disabilities in its Work


The Human Rights Council Advisory Committee this morning discussed how it will engage in a study on best practices on the question of missing persons as mandated by Human Rights Council resolution 7/28, and opened its discussion on integrating the rights of persons with disabilities in its work.

Introducing the topic, Advisory Committee Expert Latif Huseynov said that at the ninth session of the Human Rights Council in September 2009, a panel discussion on the question of missing persons was held. Experts from the International Committee of the Red Cross, government delegates, members of civil society, and other international organizations were invited to participate. The aim of the discussion was to raise awareness of missing persons in relation to armed conflict, and to identify practical recommendations and best practices to address those issues. In relation to resolution 7/28 on missing persons of the Human Rights Council, the Advisory Committee was entrusted with identifying best practices in this particular sphere.

In the general debate on the study to be conducted by the Advisory Committee on best practices on the question of missing persons, some Committee Experts expressed concern regarding the clarity of the mandate to devise a report on best practices in the sphere of missing persons, saying it was not clear whether they should include forced disappearances in the study or just on missing persons. Other Committee Experts said that in fact there should not have been any misunderstanding with respect to what work the Advisory Committee was entrusted to complete on missing persons, and that they should focus on missing persons as mandated by the Human Rights Council. Some Committee Experts believed that a drafting group should be set up to lay the groundwork for the preparation of the study on missing persons, and that the report to be presented to the Human Rights Council on missing persons should include best practices and policies from governments and members of civil society, among others.

Advisory Committee Experts speaking in the general debate included Latif Huseynov, Miguel Alfonso Martinez, Dheerujlall Seetulsingh, Vladimir Kartashkin, Wolfgang Stefan Heinz, Shiqiu Chen, Emmanuel Decaux, Purificacion V. Quisumbing, Bernards Andrews Nyamwaya Mudho, Mona Zulficar and Ansar Ahmed Burney.

Also speaking were delegates of Azerbaijan and Mexico and the non-governmental organization Indian Movement Tupaj Amaru.

The Advisory Committee is scheduled to meet again in public at 3 p.m. this afternoon when it will continue its discussion on the rights of persons with disabilities, and time permitting will begin its discussion on the human rights of women and the request by the Human rights Council for the Committee to prepare a set of draft guidelines on methods to operationalize gender mainstreaming, including action-oriented mechanisms that would facilitate the implementation of the Committee’s mandates.

Document

The Committee has before it document A/HRC/10/10 which is a summary of the panel discussion on the question of missing persons prepared by the Office of the High Commissioner for Human Rights. The document states that the Human Rights Council held, on Monday 22 September 2008, a panel discussion on the question of missing persons. Experts of the International Committee of the Red Cross, delegates of Governments and non-governmental organizations, as well as national human rights institutions and international organizations had been invited to participate. Subsequently, the Human Rights Council Advisory Committee should be charged with the preparation of a study on best practices in the matter. The panel’s main objective was to raise awareness of the issue of persons reported missing in connection with armed conflicts, highlighting the human rights aspects and implications.

Participants noted that when addressing the issue of missing persons, the focus should be on victims of displacement in times of violence or armed conflict as well as on those who are reported missing through coercive action, including the victims of enforced disappearances. Also relatives of missing persons, exposed to emotional pain and potentially to social and economic marginalization, were to be considered victims. Regarding the legal framework, the adoption of the International Convention for the Protection of All Persons from Enforced Disappearances was considered a great step forward in the fight against impunity. Furthermore, the potential offered by new technologies and science such as forensic archeology, forensic anthropology or the integrated use of DNA was mentioned.


General Discussion on Preparing a Study on Best Practices on Question of Missing Persons

LATIF HUSEYNOV, Advisory Committee Expert, said that at the ninth session of the Human Rights Council a panel discussion on the question of missing persons was held in September 2008. Experts from the International Committee of the Red Cross, government delegates, members of civil society, and other international organizations were invited to participate. The aim of the discussion was to raise awareness of missing persons in relation to armed conflict, and to identify practical recommendations and best practices to address those issues.

Mr. Huseynov said that in relation to resolution 7/28 on missing persons of the Human Rights Council, the Advisory Committee was entrusted with identifying best practices in this particular sphere. Two approaches had been devised. One was a broad based approach that included focus on forced disappearances. For example, an opinion was expressed that the focus should be on victims of displacement in times of armed conflict including persons who had been coerced. The second approach aimed at focusing on the issue of missing persons, and it was expressed that it should not include cases involving forced disappearances. Recommendations made at the International Red Cross Conventions in 2005 and 1993 should constitute a major framework for the work the Committee was to engage in the future, Mr. Huseynov stressed. In addition, the discussion concluded that the concept of armed conflict should be included in the Committee’s deliberations on missing persons, and should incorporate other cases of internal violence, and disturbances that violated the Geneva Conventions. Further, the panel discussion concluded that new mechanisms should be established apart from those which had been recommended by the International Committee of the Red Cross, or what was in the Geneva Conventions. However, the mechanisms should be complimentary to the recommendations made by the International Committee of the Red Cross. In addition international humanitarian law and human rights law should be viewed hand in hand when pertaining to the issue of missing persons. Specifically the right to truth was emphasized by the panel, and it should constitute a main element of the study to be conducted by the Committee. Special emphasis should also be placed on certain legal issues relating to the issue of missing persons, specifically with respect to the return of personal effects, the means of identification, and the family involvement of tracing remains, among others.

MIGUEL ALFONSO MARTINEZ, Advisory Committee Chairperson, said that the Human Rights Council requested the Advisory Committee to prepare a report on best practices. This report should be presented at the twelfth session of the Human Rights Council which would be held in September. The appropriate steps had to be taken to begin the process and the Experts should express their general views on the subject.

DEERUJLALL SEETULSINGH, Advisory Committee Expert, said that the Committee needed a clear view when dealing with missing persons. It had to be discussed whether the views of the Deputy High Commissioner were taken as the basis or if a discussion was needed on whether victims of enforced disappearances were also included. In his view, it would be wiser to follow the view of the Deputy High Commissioner and deal with both categories, including victims gone missing due to coercive action. Coercive action would have to be defined in that case. He also referred to an existing report of the International Committee of the Red Cross which already gave information on best practices.

VLADIMIR KARTASHKIN, Advisory Committee Expert, said that since he had dealt with the issue, the Committee had to make a clear distinction between individuals who had disappeared due to forced actions and simply those who were missing in action. He expressed with conviction that this should only deal with persons missing in action. There was already an international convention on forced disappearances, and the Human Rights Council had given the Committee a mandate to prepare an investigation on paper in the form of best practices. It was difficult to conduct best practices in cases involving persons’ enforced disappearances, which was the result of government actions. The Committee needed to reduce its scope to internal armed conflicts and to look at what were the best practices in the area of persons missing in action. The Committee needed to put forth clear proposals and to include the work already done in the sphere of missing persons. Most importantly the study conducted by the Committee needed to highlight the shortcomings that existed in specific areas relating to missing persons, and should not only look at best practices. This was necessary for the Committee to be able to look at real solutions to problems in the area of missing persons.

WOLFGANG STEFAN HEINZ, Advisory Committee Expert, said that the major goal of such a study was not clear. Was it rather a conceptual study or should it concentrate on missing persons in action and in armed conflict? Or was it about overlapping issues in humanitarian law and human rights in armed conflict? On a much more practical level, it could also be about bringing together best practices to trace missing persons. Or should both areas be covered? If the goal was a summary of best practises in armed conflict, the International Committee of the Red Cross would have the experience needed, but the information would be confidential and therefore not easy to access. Another possibility was to study the response of national governments to disappeared persons and missing persons. To conclude, a clearer idea of what had to be done was needed in order to deliver what the Council expected.

SHIQIU CHEN, Advisory Committee Expert, said that the resolution taken by the Human Rights Council mandating the Committee’s work did not specify clearly what kind of issues or topics should be part of the study and further what types of persons should be studied. It was impossible for the Committee to conduct its work without clearly identifying the scope of the study. With respect to the recommendations made by the panel discussions, he asked what types of new mechanisms did that recommendation entail exactly? There were no substantive conclusions that came out of the panel discussion and it was necessary that they were made clear. The Committee’s work on this study of missing persons could not have been completed by the established time table, set for the twelfth session of the Human Rights Council, and as such he believed that the time table should reflect the reality of the Committee. Substantive work on this study had not yet begun and therefore a pragmatic timetable was necessary to fulfil the mandate entrusted by the Human Rights Council.

MIGUEL ALFONSO MARTINEZ, Advisory Committee Chairperson, said that the Human Rights Council had asked the Committee to prepare the study immediately after it had held a panel discussion on missing persons. Frankly, the timeframe given by the Council seemed too short, this was a mission impossible. As to the contents, Mr. Alfonso Martinez underlined that the International Committee of the Red Cross did not make any distinction between international and domestic conflicts, which would make sense since there were legal frameworks and instruments which covered both types of conflict. The Committee had to be very clear on what to do since the timeframe was very short and no new guidance could be asked from the Council in the meantime.

LATIF HUSEYNOV, Advisory Committee Expert, said that he wanted to make clear a couple of issues that had been raised by Committee Experts in tackling the issue of enforced disappearances and enforced missing persons. These were two separate issues and as such there should be no misunderstanding as to what the Committee had been entrusted to do. The resolution of the Human Rights Council spoke only on cases of missing persons as a result of armed conflict. There was substantial ground to exclude the issue of enforced disappearances. The task ahead of the Committee was clear, to provide the Human Rights Council with clear recommendations as stated in article 75 of the Human Rights Council resolution 7/28. Internal and international conflicts had been included in the scope of the resolution and protocol 2 of the resolution which dealt with armed conflict. Moreover, the term “armed conflict” had been used frequently in the resolution’s text, and as such there should not have been any confusion as to what the substance of the study should include. The Committee should conduct its work on missing persons involved in international and internal conflicts, keeping in line with the meaning of the Geneva Conventions and Protocol 77. Furthermore, national legislation and policies and international policies should be examined when the Committee conducted its study on missing persons.

EMMANUEL DECAUX, Advisory Committee Expert, said that the issue of missing persons was not a new problem. In many countries there was specific legislation for missing persons. What concerned Mr. Decaux most was the fact that there was no clear mandate to the Committee. If there were to be consultations, Interpol should be asked to participate. Further, it had to be asked what the added value was that the Advisory Committee could provide. So far, it seemed that a more comprehensive study should be provided but the Human Rights Council needed to give a result-oriented mandate and had to be specific in what it wanted from the Advisory Committee.

PURIFICACION V. QUISUMBING, Advisory Committee Expert, said that she appreciated the challenges that the President of the Committee had stated and summarized. She reminded the Committee that the deadline for the study to be completed was set for September 2009, and as such the challenge was what the Committee would be able to produce on a subject matter that was already covered by many groups. She suggested that in light of the deadline set, and the need for conceptual clarity, that a drafting group should be put together before the end of the Committee’s session, which would devise a paper that would put forth the concerns of the Committee and present it to the Human Rights Council, which included among other things: the question of missing persons and enforced disappearances, a conceptual paper vs. operational paper, international or domestic or both. Before best practices there were discussed, the gaps needed to be identified in order to avoid duplication of work. Further, it was necessary for the issues and the parameters for the Committee’s work to be identified.

MIGUEL ALFONSO MARTINEZ, Advisory Committee Chairperson, drew the attention of the Committee to the fact that in the document by the Human Rights Council, new mechanisms were mentioned that would be built around the issue of missing persons. The Advisory Committee was clearly asked to prepare a study of best practices. The Committee was required to further define whether existing best practices or possible future practices should be examined.

LAZARO PARY, of Indian Movement Tupaj Amaru, said that the document before the Committee on the issue of missing persons was in English and was not available in any other languages. It was missing concrete examples with respect to the Convention on Missing Persons adopted by the Human Rights Council in 2006. This instrument clearly stipulated what was meant by enforced missing persons, it also mentioned that historical truth needed to be established. It was important for future generations to know how these persons disappeared, for example during colonial wars or during colonization. In addition, the Convention Against Torture was not mentioned in the document. Within the framework of armed conflict, the Committee should take into account the reality on the ground and experiences such as those in nineteenth century Spain or France should not be revisited. Furthermore, civil society and non-governmental organizations needed to be more involved in the process as they worked closely with the victims on the ground. He encouraged that a study be conducted on missing persons.

HABIB MIKAYILLI (Azerbaijan) said that there was a misunderstanding about the issue. A clear distinction had to be made between missing persons and enforced disappearances. These were two separate topics. Furthermore, since human rights should always be respected, the panel of the Human Rights Council on missing persons had highlighted the human rights aspects of the problem. This should also be done in the future.

JOSE GUEVARA (Mexico) thanked the High Commissioner for Human Rights for the summary on the panel discussion on the issue of missing persons. This discussion enabled the Committee to look at two specific cases discussed. He suggested that a study on legislative and other best practices should be conducted to shed light where the gaps were, and to accurately deal with the issue of missing persons.

CHINSUNG CHUNG, Advisory Committee Expert, said concerning the distinction between missing persons and enforced disappearances that missing persons was a broader definition. She emphasized that women and children were more vulnerable and there were many women missing in conflict. This was also linked to sexual types of violence and impunity was more serious in the case of violence against women. There were many cases from World War II, Rwanda, Congo, former Yugoslavia and so on. Ms. Chung asked the Committee to incorporate this gender perspective also in the reports that had already been started in the Sub-Commission.

BERNARD MUDHO, Advisory Committee Expert, said that many of the Committee Experts had made it clear that the instructions mandated by the Human Rights Council were not in fact exactly that clear. He suggested that the Committee do the best it could to contribute in a unique and positive way to what it had been mandated to do. He advised that it might not be in the best interest of the Committee to second guess the decision of the Council. He believed that the issue was not as clear as Mr. Huseynov had advocated. The study talked about missing persons and enforced disappearances, and suggested that the Committee response should be in the form of a report that embodied what the Committee believed the purpose of the study should be. A small drafting group should be created to put together the views discussed in the Committee in the form of a report, to ensure that the Committee was not seen as not wanting to undertake an assignment that had been bestowed upon it.

WOLFGANG STEFAN HEINZ, Advisory Committee Expert, supported the proposal to establish a working group. The resolution spoke clearly about missing persons. This was related to armed conflict. Also, the Committee was asked to collect best practices and not undertake theoretical deliberations. It was possible to start with such a work.

GONZALO JORDAN (Argentina) said that the study was very important. Argentina was of the view that the study should also include enforced disappearances.

VLADIMIR KARTASHKIN, Advisory Committee Expert, said that the Committee agreed on a certain number of issues. He preferred to start work based on the questions raised by Mr. Heinz. These problems were complicated and required further investigations. Such work could be completed within two years. Instead of creating working groups for every question, the Committee should entrust some of its members to carry out the work. The creation of working groups would mean that the representatives had to take part in various working groups at the same time. Also, the Human Rights Council could be asked to give its opinion and also extend the deadline for the preparation of the study.

MONA ZULFICAR, Advisory Committee Expert, said that she was not in favour of responding to the Human Rights Council with questions, and would rather fulfill the mandate as had been provided. The Committee knew that best practices were more operational and implementation oriented rather than a study which was conceptual and technical in nature. The Committee had enough information to adequately respond to the request of the Human Rights Council under the mandate entrusted to the Committee. She favoured the growing consensus to put together a small drafting group to prepare a report on best practices and recommendations for missing persons in armed conflict, both international and national.

ANSAR BURNEY, Advisory Committee Expert, said that several members of the Committee were having problems with emails sent to them. He had also not received an invitation to attend the Human Rights Council panel meeting on missing persons from the Secretariat. This issue, including emails versus paper copies, had to be looked into.

PURIFICACION V. QUISUMBING, Advisory Committee Expert, said that she supported the creation of a drafting group, and that the drafting group did not necessarily need to be comprised of Committee Experts based on specific regional representation. She recommended that Bernards Andrews Nyamwaya Mudho, Advisory Committee Expert, would be a suitable member of the drafting group being discussed.

BERNARD MUDHO, Advisory Committee Expert, said that it was not necessary that all regional groups had to be represented in the working groups. He did not have the impression that the Committee was clear about what the contents of the study should be. Mr. Mudho reiterated that he did not share the opinion put forth by other members that it was clear what was demanded by the Committee.

MIGUEL ALFONSO MARTINEZ, Advisory Committee Chairperson, said that he was very interested by the statement made by Mr. Heinz that the Council needed to clarify points. However, hearing statements made by Mexico and other observers has changed his mind. First and foremost, in 9/101 decision, the Council asked the study to be carried out on best practices regarding missing persons. The Council should be informed in light of paragraph 11 of resolution 7/28 and therefore the study would focus on taking stock of national and international provisions that covered what was to be done in cases involving missing persons in armed conflict. He supported the creation of a small drafting group comprised of members of the Committee, in order to move forward on what it had been mandated to do, specifically focusing on the issue of missing persons in armed conflict, both at the national and international level. He was concerned that the Committee’s first reaction to clarify its request to the Advisory Committee would not be in the best interest of the Committee. The Committee was competent to contribute valuable work. Furthermore, he suggested that the report would compile both international humanitarian law and international human rights law.

LATIF HUSEYNOV, Advisory Committee Expert, said that this task was a complicated one but Experts never got easy tasks. In a response to the Human Rights Council, the structure of work could be laid down in order to show that the Committee had begun its work. It was not reasonable to get back to the Council for further clarification.

MIGUEL ALFONSO MARTINEZ, Advisory Committee Chairperson, underlined that the groundwork could begin now and could be continued between the sessions of the Committee. It was important to make good use of time and to already start work in the coming days.


General Discussion on Integrating the Inclusion of Persons with Disabilities in the Work of the Committee

MIGUEL ALFONSO MARTINEZ, Advisory Committee Chairperson, said he would now open the discussion on the Human Rights Council resolution 7/9 on integrating the perspective of persons with disabilities in the work of the Committee.

JOSE GUEVARA (Mexico) said that Mexico agreed with the Committee’s interpretation of paragraph 5 of the resolution on integrating the perspective of persons with disabilities. The work of the Advisory Committee should focus on designating time to discuss each issue it had been mandated to focus on.

LATIF HUSEYNOV, Advisory Committee Expert, said that the issue of persons with disabilities should always be incorporated in the Committee’s studies. For example, if topics on the right to food or education and training were presented in the Committee, the presentations should always include the perspective of persons with disabilities. This would demonstrate that the issue constituted an integral part of the Committee’s work.
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