人权理事会举行关于真相、司法、赔偿和保证不再发生问题以及强迫失踪问题的互动对话（部分翻译）

中午

2015年9月15日

人权理事会在中午的会议中开展了其与寻求真相、司法、赔偿和保证不再发生问题特别报告员巴勃罗•德格列夫（Pablo De Greiff）和被强迫或非自愿失踪问题工作组主席兼报告员阿瑞尔•杜利茨（Ariel Dulitzky）的集体互动对话。

德格列夫先生表示，预防应作为具体且深思熟虑的政策制定目标，可以进行计划、预算、落实和监督，它十分重要。没有一个普适的保证不再发生政策可以适用于任何类型的过渡。背景、需求和过渡进程的阶段与机构易于实现的目标、最需要解决或最可能发生的侵犯行为一样重要。机构改革并不足够，需要社会领域的干预来加强民间社会并改变态度和思维模式。预防还需要加强民间社会，包括社区层面的法律赋权制度，并为民间社会组织营造有利环境。

杜利茨先生表示，为了让联合国兑现35年前对强迫失踪受害者的承诺，落实改革至关重要。唯一有效且持续的安全可能是不加歧视地维护人权。当国家以打击恐怖主义的名义牺牲人权时，就加强了恐怖主义的影响。工作组已开始处理去年新的384起强迫失踪案，4.3万起案件仍尚未解决，而这只是“冰山一角”。各国应采取具体的措施来预防对人权维护者的强迫失踪，应在联合国内设立高级别协调员来处理针对人权维护者的报复问题。

布隆迪、克罗地亚、黑山、塞尔维亚以及代表科索沃失踪人员政府委员会的联合国科索沃临时行政当局特派团作为当事国和当事方发言。

在关于促进真相、司法、赔偿和保证不再发生问题的对话中，发言人支持特别报告员的观点，即不再发生和预防需要通过多部门政策来解决，包括法律、司法和宪法改革，以及对民间社会的赋权、文化改革和教育行动。

发言人对被强迫或非自愿失踪问题工作组强调强迫失踪和经济、社会及文化权利之间的联系这一点表示欢迎。他们中的一些人介绍了他们所在国家在处理过往的强迫失踪案件方面的行动，另一些人提请理事会注意在其他国家发生的强迫失踪案件。

在互动对话中发言的有欧盟、代表阿拉伯集团的巴基斯坦、代表非洲集团的阿尔及利亚、代表拉美及加勒比国家共同体的厄瓜多尔、法国、葡萄牙、埃及、澳大利亚、突尼斯、巴西、墨西哥、阿根廷、古巴、摩洛哥、比利时、塞拉利昂、日本、俄罗斯联邦、巴林、波兰、美国、哥伦比亚、阿尔及利亚、尼日利亚、伊朗和朝鲜。

尼加拉瓜、塞尔维亚、朝鲜民主主义人民共和国和日本行使答辩权发言。

人权理事会将在下午的会议中举行关于在其工作中纳入性别平等视角的年度讨论。理事会将在9月16日（周三）上午9点结束其与寻求真相、司法、赔偿和保证不再发生问题特别报告员和被强迫或非自愿失踪问题工作组主席兼报告员的互动对话。

Documentation

The Council has before it the report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence (A/HRC/30/42)
The Council has before it an addendum to the report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence on the Mission to Burundi (A/HRC/30/42/Add.1)
The Council has before it an update by the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence on his visit to Burundi (A/HRC/30/CRP.1)
The Council has before it the report of the Working Group on Enforced or Involuntary Disappearances (A/HRC/30/38)
The Council has before it an addendum to the report of the Working Group on Enforced or Involuntary Disappearances on the Mission to Serbia, including Kosovo (A/HRC/30/38/Add.1)
The Council has before it an addendum to the report of the Working Group on Enforced or Involuntary Disappearances on the Mission to Montenegro (A/HRC/30/38/Add.2)
The Council has before it an addendum to the report of the Working Group on Enforced or Involuntary Disappearances on the Mission to Croatia (A/HRC/30/38/Add.3)
The Council has before it an addendum on the follow-up to the recommendations of the missions of the Working Group on Enforced or Involuntary Disappearances to East Timor and Mexico (A/HRC/30/38/Add.4)
The Council has before it an addendum on the Study on enforced or involuntary disappearances and economic, social and cultural rights (A/HRC/30/38/Add.5)
Presentation of Reports on the Promotion of Truth and Justice and on Enforced or Involuntary Disappearances

PABLO DE GREIFF, Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, said prevention was crucial as an object of concrete and deliberate policy making that could be planned, budgeted, implemented and monitored. There was no such thing as a universal non-recurrence policy that could be applied to any type of transition. Context, needs and stage in the transitional process mattered as much as what institutions were apt to accomplish, and the violations that needed to be redressed most or that were most likely to occur. Institutional reforms were not enough, and interventions in the societal sphere were needed to strengthen civil society and transform attitudes and mindsets. More complex and ambitious efforts had to be made to reform the justice system and the security sector, including changes in emergency and counter-terrorism legislation and the inclusion of a bill of rights. Prevention also required the strengthening of civil society, including establishing legal empowerment regimes at the community level and creating an enabling environment for civil society organizations. Finally, interventions at the individual and cultural levels were needed to ensure non-recurrence, including through educational reforms, memorialization and archives, aiming at fostering analytic thinking and critical debate. Psychosocial support and trauma-counselling were central for repairing the social contract.

In light of the alarming changes in Burundi since his last visit, the Special Rapporteur presented an update on the situation there. The international community could not afford to simply stand by and wait for new mass atrocities to occur. People in Burundi had endured untold suffering and the worst imaginable violations. The Special Rapporteur urged the Human Rights Council to address the long-standing and systematic failures pertaining to the truth about past mass violations, accountability, responsibility for international crimes, and assistance and reparation to the victims. The general situation of insecurity in Burundi was a direct consequence of violence by the youth militia supported by the ruling party. In relation to his recent visit to Sri Lanka, the Special Rapporteur said transition there had the potential to constitute an example for the region and the world of how a sustainable peace ought to be achieved. Immediate action needed to include clarifying the fate of the disappeared, addressing land issues, ending arbitrary detention, and providing psychosocial support to the victims, in addition to concrete steps in relation to ensuring criminal responsibility, including preventing the destruction of archives. In relation to Tunisia, the Special Rapporteur called on the authorities to provide the Truth and Dignity Commission with the necessary space and enabling environment to live up to its task, including dialogues with civil society organizations and victims, and called on the Commissioners to overcome personal disagreements that had delayed justice.

ARIEL DULITZKY, Chairperson-Rapporteur of the Working Group on enforced or involuntary disappearances, presenting the reports of the Working Group, said that it was vital to execute reforms in order for the United Nations to comply with promises made to victims of enforced disappearances 35 years ago. The only effective and lasting security could be one that upheld human rights without discrimination. When States scarified human rights in the name of fighting terrorism, they increased the effects of terrorism. The Working Group had started processing 384 new cases of enforced disappearances in the past year, and more than 43,000 cases were still unresolved, and this was only the tip of the iceberg. The phenomenon of enforced disappearances was changing all the time; the Working Group was concerned about the increase in enforced disappearances carried out by non-State actors and was following through in order to determine whether such enforced disappearances were within its mandate. States should take specific measures to prevent enforced disappearances of human rights defenders and a high-level Coordinator should be set up within the United Nations to deal with issues of reprisals against human rights defenders. Visits were a fundamental aspect of the mandate, but the Working Group had sufficient funds for only two visits per year, which meant that it would take 40 years to visit all 84 countries where enforced disappearances had been registered. This needed to change. The Working Group had completed its thematic report on enforced disappearances and their impact on economic, social and cultural rights of disappeared persons and members of their families.

Mr. Dulitzky then went on to present the reports on visits to Croatia and Serbia, including Kosovo and Montenegro, noting the positive and profound transformation in the region. There was an urgent need to establish the truth and determine the fate and whereabouts of all disappeared during the conflict. The Working Group called on all authorities to continue their efforts in finding the disappeared and identifying remains, prosecute those responsible for war crimes and crimes against humanity, and combat impunity. Transitional authorities in Kosovo should continue to fulfil their international obligations in this regard. In Mexico, there was very little progress in the implementation of the recommendations following the visit to this country in 2011. Impunity prevailed, searches were not effective, and victims did not receive adequate and comprehensive reparation. In Timor-Leste, the Working Group regretted the lack of the implementation of the recommendations and recognized the important work carried by the Commission for Reception, Truth and Reconciliation in Timor-Leste and the Commission for Truth and Friendship. Concluding, Mr. Dulitzky said that the world had changed radically since the creation of the Working Group 35 years ago, but the use of enforced disappearances had unfortunately not changed. The challenges faced today required new approaches and creativity in finding ways to strengthen the prevention and eradication of enforced disappearances.

Statements by Concerned Countries

Burundi, speaking as a concerned country, said a truth and reconciliation commission had been created in Burundi after intense consultations, and had already started its work. The Commissioner had a lot of work and required assistance in terms of technical assistance and capacity building. Burundi pointed out that it would hold a meeting with the Special Rapporteur later this week to further discuss the situation.

Croatia, speaking as a concerned country, said the consequences of the war remained vivid two decades later. Croatia was still searching for 1,591 disappeared persons, but this required access to Serbian archives. Croatia had implemented all the principles by the International Committee of the Red Cross to identify the disappeared. New technologies allowed for complex exhumations, including DNA analysis. The ratification of the International Convention for the Protection of All Persons against Enforced Disappearances was in process. Croatia had also signed a regional declaration that highlighted the primary role of States in dealing with cases of enforced disappearances.

Montenegro, speaking as a concerned country, said that the regional perspective and cooperation was one of the key elements in finding a way out of the situation in which there were still families which, after two decades, did not know anything about their members. The State would continue with its dedicated work to support each family until all families knew the fate of their relatives. As recommended by the Working Group, Montenegro had established a Special Department for War Crimes in the Prosecutor’s Office, adopted the recommendation related to the National Commission for Enforced Disappearances, adopted a Strategy for Investigating War Crimes, and had made changes in the Healthcare Act in order to provide free healthcare for all members of the families of missing persons.

Serbia, speaking as a concerned country, said that around 40,000 persons had gone missing during the armed conflicts on the territory of former Yugoslavia, and that as of July 2015 there were still 10,837 persons missing. The fate of 1,687 persons missing during the conflict in Kosovo was still unknown. In 2005, a Working Group had been established for persons missing in the events of Kosovo between January 1998 and December 2000. Serbia welcomed the establishment of the Special Court for War Crimes in Kosovo and said that the victims’ families deserved unbiased investigation and punishment of the perpetrators of those serious offenses.

United Nations Interim Administration Mission in Kosovo, speaking also on behalf of the Governmental Commission for Missing Persons in Kosovo as a concerned party, regretted that Kosovo was included in Serbia’s report instead of being treated as a country per se. It also regretted that the Working Group’s report referred to the Rrezalle massacre timidly, and insisted that this massacre did happen; this massacre was documented and proven, and it remained one of the largest in Kosovo. Perpetrators of the crimes had dislocated the bodies to cover their tracks. Kosovo’s Governmental Commission for Missing Persons had intensified its cooperation with the competent institutions of the neighbouring countries in order to best address the issue of missing persons from the region.

Interactive Dialogue

European Union noted that the Special Rapporteur missed a reference to the role of the multilateral and international world to help avoid recurrence. The European Union shared concern on Burundi and the fact that the recent elections lacked credibility. It also voiced concern over the numerous cases of repression against victims of enforced disappearances and their families. Pakistan, speaking on behalf of the Organization of Islamic Cooperation, concurred with the analysis that enforced disappearances impacted the enjoyment of a number of rights. It urged Member States to adopt administrative, judicial and legislative measures in order to protect and foster the economic, social and cultural rights, including the right to development of people belonging to disadvantaged groups. It also urged them to adopt non-recurrence measures. Algeria, speaking on behalf of the African Group, emphasized the complexity of measures that guaranteed non-recurrence, which depended on the historical, social and political context of each country. The African Group welcomed the Special Rapporteur’s visit to Burundi and reiterated that the fight against impunity and the rehabilitation of victims should be at the centre of global processes. Ecuador, speaking on behalf of the Community of Latin American and Caribbean States, noted that people and their right to development should be at the heart of all policies. There should be a complete analysis of the social meaning of the term “non-recurrence.” It should go beyond rhetoric and aim to develop concrete policies. As for enforced disappearances, the Community advocated work on support for victims and their families.

France reiterated the Special Rapporteur’s appeal to guarantee civil society a large space, so that it could play its role in promoting dialogue, reconciliation and prevention of new violence. France also shared his appeal to States to develop a globally centred policy on human rights in post-conflict situations. In relation to the Working Group on Enforced Disappearances, France commended its considerable field work and called on States to cooperate with it by responding positively to its urgent calls. Portugal thanked the Working Group on Enforced Disappearances for its latest report, and in particular for its insightful study on enforced or involuntary disappearances and economic, social and cultural rights, which clearly demonstrated the interdependence, interrelatedness and indivisibility of all human rights. Portugal inquired about the international mechanisms that could better contribute to ensure the adequate protection of persons at higher risk. Egypt said that it attached great importance to the continuous and constructive dialogue with the Working Group on Enforced Disappearances with a view to clearing all pending cases in Egypt. With regard to the report of the Special Rapporteur on truth, justice, reparation and non-recurrence, guarantees of non-recurrence should normally be a by-product of fulfilment of truth, justice and reparations. Austria stressed that the importance of an independent and effective judiciary in securing rights had unfortunately not been given a prominent enough role in discussions about guarantees of non-recurrence in the past. Commending the Special Rapporteur’s role on this issue, Austria stressed its strong belief that education and history-teaching had the potential to act as powerful tools for non-recurrence.

Tunisia expressed its support to the mandate of the Special Rapporteur on truth, justice and guarantees of non-recurrence. Tunisia insisted on the importance of the Special Rapporteur’s recommendations and demanded that they be published in all working languages of the Council. Tunisia welcomed that the Working Group had emphasized the link between enforced disappearances and economic, social and cultural rights. Brazil said inequality and poverty correlated with violence and had to be addressed as part of a national policy on non-recurrence. Brazil welcomed the Working Group on Enforced Disappearances’ focus on economic, social and cultural rights, and agreed that preventing enforced disappearances presupposed a comprehensive approach encompassing the promotion of all rights. Mexico recognized that it continued to face challenges in the area of disappearances, and would continue its efforts to solve cases and implement recommendations. Mexico had held a national conference on justice, inclusive of civil society, and had sought technical assistance to solve the case of the disappeared students. Argentina recalled its experience in addressing enforced disappearances after the military dictatorship, and expressed support to the mandate of the Working Group. Argentina was today a democracy, and was conducting memorial activities, which was vital for historical reparation.

Cuba shared the Special Rapporteur’s emphasis of the importance of teaching history as a means to promote truth and justice. As for the issue of enforced disappearances, Cuba concurred with the Working Group that they had an impact on economic, social and cultural rights. There was a need to prevent repression against victims of enforced disappearances. Morocco emphasized the importance of non-recurrence in the process of national reconciliation in order to consolidate transitional justice. Accordingly, it supported the necessity to provide guarantees for non-recurrence and underlined the consolidation of national capacities in creating a culture of prevention of human rights violations. Belgium underlined the importance of measures for non-recurrence. Three elements contributed to it: truth, justice and reparations. Institutional reforms were key in guaranteeing non-recurrence, including judicial reform. Belgium asked the Special Rapporteur to advise how the international community could best assist Burundi in developing transitional justice initiatives. Sierra Leone said that truth commissions played an essential role in transitional justice. It was important that those within the cultural domain of a State contribute to long-standing transformations, including non-recurrence. As for enforced disappearances, Sierra Leone noted with concern that more than 43,000 cases remained unresolved.

Japan commended the Special Rapporteur’s visit to Sri Lanka and hoped that it would establish a reliable domestic mechanism which satisfied international standards. Japan attached great importance to the Working Group on Enforced Disappearances, and especially appreciated its undertakings towards identifying the missing persons in “North Korea.” Russian Federation commended the work of the Working Group on Enforced Disappearances and stated that Russian law-enforcement agencies were taking all measures to locate disappeared persons, though it was not able to provide specific details for all cases, in particular cases that happened 20 years ago. Bahrain stated that the laws in Bahrain provided for the protection of individual freedoms, and families of people in custody were allowed to receive information. It regretted that the Working Group had used statements by anonymous individuals rather than by victims. Poland expressed its appreciation to the Working Group on Enforced Disappearances, and highlighted the huge number of cases concerning many States which had yet to be clarified, and which spoke to the fact that enforced disappearances were a thing of the past. Poland was alarmed by the high number of abductions by non-state actors, and inquired what would be undertaken in this respect.

United States welcomed the Special Rapporteur’s views regarding reconciliation in Sri Lanka and the current situation in Burundi, and asked how the international community could address impunity for past and contemporary abuses there. The United States asked what issues the Working Group’s report on migrants would focus on. Colombia agreed that non-recurrence should be a policy goal that needed to be translated into concrete actions. Colombia had taken initiatives to promote reconciliation and to promote memorialization and non-recurrence. Colombia reiterated its support to the mandate of the Working Group on Enforced Disappearances. Algeria reiterated its will to have the Working Group on Enforced Disappearances visit the country soon, and reiterated its commitment to continue its efforts to address past cases of disappearances. Algeria said addressing issues of combatting impunity had to be done in the historical context of each country, bearing in mind the path that countries had chosen towards reconciliation. Nigeria agreed that guarantees of non-recurrence had to be part of a comprehensive transitional strategy, and supported the Special Rapporteur’s recommendations that inclusive mechanisms had to be included in constitutional reforms.

Iran noted that in their “war on terror”, some countries had used wide-ranging methods of involuntary detention, including enforced disappearances, the informal transfer of suspected terrorists in both acknowledged and secret state-controlled detention facilities outside their territories, and proxy detention in foreign-controlled facilities. Republic of Korea fully agreed that non-recurrence, including legal reforms, judicial reforms and constitutional reform was crucial in the policy making process. As for enforced disappearances, it requested the continued interest of the international community in the cases of abductees in the Democratic People’s Republic of Korea.

Right of Reply

Nicaragua, speaking in a right of reply, responded to Costa Rica on a case of alleged arbitrary detention, explaining that it was the case of normal rather than arbitrary detention. The Government provided all the information about that case to the Working Group on Arbitrary Detention and stated that criminal proceedings took place under strict legal provisions, in line with international human rights standards.

Serbia, speaking in a right of reply, upheld the right of the families of the disappeared to find out what happened and who was responsible. The Government had already delivered 902 exhumed bodies of Kosovo Albanians, and it continued its search for the remaining missing persons. Unfortunately, there was no reciprocity on the Kosovo Albanian side. Serbia was also cooperating with other regional countries, such as Bosnia and Herzegovina, Croatia and Montenegro, to find the remaining missing persons.

Democratic People’s Republic of Korea, speaking in a right of reply, stated that it had provided clarification through a number of letters regarding the cases raised by Japan and “South Korea”. The Governments of Japan and “South Korea” also needed to undergo their respective homework, especially with regards to the millions of Koreans forcefully abducted during the Japanese occupation.

Japan, speaking in a right of reply in response to the statement made by the representative of the Democratic People’s Republic of Korea, said that the former had promised to undergo investigations on all Japanese abducted persons. It urged the Democratic People’s Republic of Korea to secure the safety of all abductees and their immediate return to Japan, and to ensure the extradition of those involved in the crimes.

Democratic People’s Republic of Korea, speaking in a second right of reply in reference to the remarks made by the Japanese delegation, stated that the two countries had signed an agreement in May 2013 in Stockholm, and this agreement had been to settle the issue bilaterally, not internationally. If Japan continued to raise this issue internationally, contrary to the agreement, there was nothing the Democratic People’s Republic of Korea could do.

Japan, speaking in a second right of reply, said it was regrettable that the Democratic People’s Republic of Korea had not responded to the repeated concerns raised by Japan, and hoped that instead of speaking in right of reply, it would undertake concrete steps on this matter.
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