强迫失踪问题委员会举行《公约》十周年庆祝活动（部分翻译）

日内瓦（2016年3月11日）——强迫失踪问题委员会今天下午举行关于当代挑战的小组讨论，庆祝《保护所有人免遭强迫失踪国际公约》通过十周年。

 

人权事务高级专员办事处人权条约司司长易卜拉欣·萨拉马（Ibrahim Salama）宣布此次讨论开幕，他指出，《公约》的通过是40多年长期斗争的成果，这场斗争由失踪人员家人以及国际社会共同领导。

 

法国大使兼常驻联合国日内瓦办事处代表伊丽莎白·罗兰（Elisabeth Laurin）强调称，法国多年来为打击强迫失踪作出了巨大承诺。

 

摩洛哥大使兼常驻联合国日内瓦办事处代表穆罕默德·纳贾尔（Mohamed Auajjar）表示，《公约》是一份年轻的文书，几乎仍有四分之三的联合国成员国尚未批准《公约》。

 

法国仲裁法院荣誉总检察长兼人权小组委员会前主席路易•茹瓦内（Louis JOINET）回顾称，起草《公约》时很难找到强迫失踪罪的共同点。

 

委员会主席埃马纽埃尔·德科（Emmanuel Décaux）强调称，感恩和团结是标志委员会精神的关键词。《公约》让打击强迫失踪在法律上势在必行。

 

开幕发言后进行了两场小组讨论。第一场小组讨论由委员会副主席苏埃拉·雅尼纳（Suela Janina）主持，题为“强迫失踪问题公约：独特创新的文书”。 小组成员为国际特赦组织强迫失踪罪方面的法律顾问所罗门·萨科（Solomon Sacco）；日内瓦国际人道主义法和人权学院的安德鲁·克拉彭（Andrew Clapham）和人权委员会主席费边·萨尔维奥利（Fabian Salvioli）。

 

第二场小组讨论——“强迫失踪问题公约和受害者权利”由委员会副主席圣地亚哥·科库埃拉（Santiago Corcuera）主持。小组成员包括：被迫或非自愿失踪问题工作组胡瑞亚·埃斯·萨拉米（Houria Es-Slami）；亚洲反对被迫失踪联会秘书长玛利·巴嘉素（Mary Aileen Bacalso）；人权国际联合会常务理事安托万·伯纳德（Antoine Bernard）和国际法学家委员会（International Commission of Jurists）的费德烈·安德鲁（Federico Andreu）。

 

在总结发言中，阿根廷大使兼常驻联合国日内瓦办事处代表阿尔韦托•佩德罗•达洛托（Alberto Pedro D'Alotto）向五月广场的母亲（Mothers of the Plaza de Mayo）及其勇气致敬。日本大使兼常驻联合国日内瓦办事处代表井原纯一（Junichi Ihara）呼吁所有国家加入该《公约》。委员会主席埃马纽埃尔·德科（Emmanuel Décaux）明确了让更多的国家批准《公约》是主要优先事项。

 

加纳，阿尔及利亚，摩洛哥和一些非政府组织也在小组讨论中发言。

委员会将在3月18日（周五）下午3点举行公开会议，结束第十届会议。

Opening Statements

IBRAHIM SALAMA, Director of the Human Rights Treaties Division of the Office of the High Commissioner for Human Rights, said that the adoption of the Convention had been the result of a long struggle over some forty years, led by both the families of disappeared persons and the international community. He paid tribute to those States that had supported the Convention, notably to France and Argentina who had promoted the Convention during the negotiations and who had, along with Morocco and Japan, initiated the organization of today’s event. Enforced disappearances appeared in the context of internal conflicts, generalized violence and humanitarian crisis, fight against organised crime and terrorism. Many people, including civilian hostages and migrants, could become victims. He called upon countries to ratify the Convention, since thus far only 51 countries had done so, and only 19 had recognised the competence of the Committee to receive individual complaints.

ELISABETH LAURIN, Ambassador and Permanent Representative of France to the United Nations Office at Geneva, stated that France had been included in the fight against enforced disappearances since the first General Assembly resolution on that topic. She acknowledged the invaluable role of individuals such as Bernard Kessedjian and Louis Joinet, whose expertise and efforts had made the Convention possible. The Committee conducted exemplary work and enabled greater visibility of the Convention, at the same time meeting the needs of the families of victims of enforced disappearances. The Convention was a legal tool for protection, not only against past but also against current manifestations of enforced disappearance, such as the systematic use of enforced disappearances in Syria, or the mass abductions in the Democratic People’s Republic of Korea. The Convention had fulfilled the legal void in the international system, and States, experts and civil society organizations all had a collective responsibility to play in strengthening its implementation.

MOHAMED AUAJJAR, Ambassador and Permanent Representative of Morocco to the United Nations Office at Geneva, informed that Morocco had initiated the panel discussion and marking of commemoration, along with the countries of the Core group, consisting of Argentina, France and Japan. The crime of enforced disappearances was ever growing, as witnessed by the numerous crises in the world. An especially worrying trend was the rise of non-state actors and terrorists. Nevertheless, almost three quarters of the Member States of the United Nations had not yet acceded to the Convention. Morocco had its own past of enforced disappearances. One of the results of the Commission for Truth, Equality and Reconciliation, established in 2004, was the ratification of the Convention. As a consequence, in the period from 2004 to 2005 over 17,000 cases of enforced disappearances had been studied, and reparations had been provided to more than 9,000 victims.

LOUIS JOINET, Honorary Attorney-General to the French Cassation Court, and former president of the Human Rights Sub-Commission, recalled the role that the Mothers of the Plaza de Mayo played in the struggle for creation of legal framework on enforced disappearances. The then Permanent Representative of France to the United Nations Office in Geneva Bernard Kessedjian had also played an invaluable role in the process. At the time of the drafting of the Convention, many Member States had been unaware of the grave danger that enforced disappearances represented. It was hard to find a common legal basis for combating enforced disappearances or to agree on a definition. Still, solutions had been found and the Convention had been adopted. Mr. Joinet thanked all the partners and civil society organizations for their contribution in advocacy work and raising awareness activities.

EMMANUEL DÉCAUX, Chairperson of the Committee, expressed his gratitude to the Ambassador of four Member States for taking the initiative to organize the commemoration of the tenth anniversary of the Convention, but also for their support and efforts over the past ten years. It was of great importance to mark today’s occasion in Geneva, where a pioneering work on the Convention had been conducted.

Panel I: The Convention on Enforced Disappearances: a Unique and Innovative Instrument

FABIAN SALVIOLI, Chairperson of the Human Right Committee, stated that the crime of enforced disappearance had gone hand in hand with torture, thus requiring a comprehensive approach to tackle the issue. The crime of enforced disappearance was of very complex nature and dealing with it implied going through numerous challenges. The laws had to be interpreted, while cases and evidence provided had to be carefully analysed in a given context since contemporary practices of enforced disappearance were disguised in other forms of crime, including secret detention. Mr Salvioli noted that treaty bodies had to improve their work in the fight against enforced disappearances.

SOLOMON SACCO, Legal Advisor at the Amnesty International, said that enforced disappearance was one of the most deliberately cruel forms of intimidation that had ever occurred in history, from certain operations in the Second World War to military dictatorships in South American States and systematic disappearances during the Balkan conflicts. There was a complex web of international standards and laws dealing with the offence of enforced disappearance. However, for further ratification of the Convention, it was necessary to ensure that enforced disappreances had been fully criminalised across the entire world. There were still a number of obstacles in the implementation of the Convention, so the Amnesty International was lobbying across the world for improved implementation and fight against enforced disappearance. The Amnesty International urged all States Parties to ensure that enforced disappearance constituted an offence under their criminal laws; to enact legislation providing for reparations to victims; to eliminate all obstacles over extradition; and to recognize the competence of the Committee under articles 31 and 32 of the Convention.

ANDREW CLAPHAM, Geneva Academy of International Humanitarian Law and Human Rights, focused on the application of the Convention during the times of armed conflict. The Convention identified non-state actors as perpetrators and Mr. Clapham said that two fears could be identified in the contemporary discourse. First, there was the “legitimacy fear” that if the international community were to start talking about human rights obligations to armed groups, it would make them look as a legitimate international players. The second fear was that of dilution, which implied that by addressing the non-state players too extensively, States could be let off the hook.

Ghana said that it had signed but had not yet ratified the Convention and a question was raised if there had been a template that the Committee could provide to countries, in order to make the process easier. Question was also raised on what could be done with regard to enforced disappearances in cases where governments denied their association with militias, during the armed conflicts. A representative of a non-governmental organization asked about the role of the Committee in territories that did not enjoy self-determination, such as Western Sahara. There had been over 400 cases of enforced disappearances and the Government of Morocco acknowledged most of those disappearances, but no further actions had been taken. Another non-governmental organization presented the situation in Western Sahara, saying that some reparations had been made for enforced disappearances that had occurred in the 1970s, but the overall transitional justice system was still underdeveloped. Algeria brought attention to the specific case of an enforced disappearance in refugee camp in Tindouf in Algeria, which went unacknowledged by the international community.

Panel II: The Convention on Enforced Disappearances and the Rights of Victims

HOURIA ES-SLAMI, Chairperson-Rapporteur of the Working Group on Enforced or Involuntary Disappearances, underscored the importance of the Working Group established in 1980, which still continued to receive complaints from families from all over the world. The difference between the Committee and the Working Group on Enforced or Involuntary Disappearances was explained. Their mandates were complementary, but while the Committee was dealing with reports of the State Parties, the Working Group on Enforced or Involuntary Disappearances was directly taking complaints from citizens. Over the course of the past thirty six years, the number of unresolved cases amounted to 43,000. The Working Group on Enforced or Involuntary Disappearances was conducting visits to States and publishing thematic reports. The next thematic report would be focused on enforced disappearance of migrants, a complex problem that had a transnational dimension. Another issue taken by the Working Group was short term disappearances, an increase of which had been seen in recent years.

MARY AILEEN BACALSO, President of the International Coalition Against Enforced Disappearances, noted that enforced disappearance were currently taking place in eighty-eight countries of the world. She recalled the initial struggle for codification of enforced disappearance and said that the Convention had initially been just a dream of family members of victims of the disappeared in Latin America. However, the steadfast determination of those families and civil society organizations had led to the adoption of the Convention. There was a strong sense of ownership of the Convention. Examples of positive practice were then presented. In Peru, the Convention had been part of the campaign for justice. Some progress had been noted in the States that had signed, but had not ratified the Convention. In Kashmir, 8,000 persons had disappeared in the previous twenty-five years. India had been accused as using disappearance as a tactic of war, but since the signing of the Convention, the number of disappearances had significantly decreased. In Pakistan, secret detention had been legalized and civilians could be tried in military courts. In Nepal, the ratification of the Convention was strongly needed to deal with consequences of a decade-long internal conflict.

ANTOINE BERNARD, Executive Director of the International Federation of Human Rights, informed about the current efforts and various means of action that the Federation had been undertaking worldwide to fight against enforced disappearances and to support the rights of victims. The Federation was committed to combating the impunity of perpetrators and advocating with the authorities to urge them to ratify the Convention. They were also working on strengthening the United Nations’ and regional mechanisms by contributing to reports during the Universal Periodic Review. It was emphasized that civil society’s participation was a cornerstone of the Committee’s work. Local non-governmental organizations had valuable findings. Victims, family members of victims and associations of victims had to play their role and the Committee’s work had to involve civil society as much as possible. Finally, webcasting of the Committee’s sessions was suggested as a way to increase the visibility of the Committee’s work.

FEDERICO ANDREU, International Commission of Jurists, noted that the Convention took into particular account the rights of victims, which were disseminated throughout the entire text of the Convention. According to the Convention, different sets of rights were provided for victims. The rights included: the right to prevention, the right to information and communication to family members, the right of family members to access to detention registers, the right to habeas corpus, the right to investigation, the right to formally report and request investigation, and the right of people to create associations to search for the disappeared. In addition, the right to truth was present in the preamble and repeated in two articles, while the right to reparations was central to ensuring the compensations for the harm committed. The Committee had three important instruments to ensure that the enlisted rights were ensured: the observations made to the States parties, decisions on individual communication and general comments that could be issued by the Committee.

It was a particularly challenging issue to investigate, since the migrants were transiting through several countries, so it would involve responsibility of several countries. Were there studies commissioned about migrants and enforced disappearances that would further investigate legal possibilities of how to approach that complex issue? Algeria also asked what the international community, including the Committee and the Working Group on Enforced or Involuntary Disappearances, had done for victims that had disappeared in Mauritania, Mali, Algeria and Morocco. Morocco asked how the Committee would deal with the enforced disappearances in the refugee camp in Tindouf. Would the responsibility be assigned to Morocco or Algeria?