The International Convention for the Protection of all Persons from Enforced Disappearance
- Author(s):
- Parliamentary Assembly
- Origin
- Text adopted by the
Standing Committee, acting on behalf of the Assembly, on 9 March
2012 (see Doc. 12880,
report of the Committee on Legal Affairs and Human Rights, rapporteur:
Mr Pourgourides). See also Recommendation 1995 (2012).
- Thesaurus
1. The Parliamentary Assembly recalls
that the problem of enforced disappearances and missing persons is
far from resolved, including in Europe. Some 14 000 persons are
still missing in the Western Balkans alone, 2 300 in the North Caucasus
region of the Russian Federation and close to 2 000 in Cyprus. Countless
persons are also missing after the conflicts in the South Caucasus
region.
2. The continuing suffering of relatives and friends of missing
persons, which was recognised by the European Court of Human Rights
as amounting to torture and inhuman and degrading treatment, remains
a formidable obstacle to lasting peace and reconciliation.
3. The Assembly therefore welcomes the considerable efforts that
have already been made by the international community to elucidate
the fate of missing persons, notably in the Western Balkans, where
the International Commission on Missing Persons (ICMP) has been
able to account for 26 000 of the 40 000 persons who went missing
after the conflicts in the region. In Cyprus, the bi-communal Committee
on Missing Persons, under the aegis of the United Nations, resumed
work in 2006 and has so far identified and returned the bodies of
300 individuals to their families.
4. The Assembly stresses the importance of genuine political
will on all sides of the conflict to uncover the truth, regardless
of the ethnic, religious or political backgrounds of the victims
and of the suspected perpetrators. In particular, the search for
burial sites by duly mandated experts must be allowed everywhere, even
in military or otherwise restricted areas, on the basis of reasonable
indications.
5. The international community as a whole must demonstrate political
will by providing sufficient resources for search and identification
efforts, taking into account their long-term nature, and by developing
an appropriate international legal framework for protection from
enforced disappearances.
6. The Assembly therefore warmly welcomes the entry into force,
in December 2010, of the United Nations International Convention
for the Protection of all Persons from Enforced Disappearance (hereafter
“the UN Convention”), which the Assembly called for in its
Resolution 1463 (2005)
on enforced disappearances.
6.1 The
Assembly welcomes in particular the fact that the UN Convention:
6.1.1 explicitly recognises a new human right not to be subjected
to enforced disappearance;
6.1.2 imposes specific obligations on States to prevent enforced
disappearances and to combat impunity;
6.1.3 provides for a broad definition of the term of “victim”
of an enforced disappearance;
6.1.4 enshrines new rights, such as the right to the truth and
to appropriate measures to search for, locate and release disappeared
persons;
6.1.5 establishes a new type of international monitoring mechanism:
the Committee on Enforced Disappearances.
6.2 The Assembly, recognising that the UN Convention is necessarily
a compromise, nevertheless regrets that some of its recommendations
in
Resolution 1463 (2005)
were not taken into account in the UN Convention, in particular
it:
6.2.1 fails to fully include in the definition of enforced
disappearances the responsibility of non-State actors;
6.2.2 remains silent on the need to establish a subjective element
of intent as part of the crime of enforced disappearance;
6.2.3 refrains from placing limits on amnesties or jurisdictional
and other immunities;
6.2.4 severely limits the temporal jurisdiction of the Committee
on Enforced Disappearances.
6.3 The Assembly also notes with regret that only 35 member
States of the Council of Europe have so far signed the UN Convention
and that only nine of those States have ratified it.
7. The Assembly welcomes recent developments in the Council of
Europe that are favourable to the fight against enforced disappearances,
including:
7.1 the case law of
the European Court of Human Rights extending its temporal jurisdiction
over enforced disappearances by stressing the ongoing nature of
the procedural obligation to investigate a disappearance;
7.2 the adoption by the Committee of Ministers of the Guidelines
on eradicating impunity for serious human rights violations (30
March 2011).
8. The Assembly recalls its
Resolution 1371 (2004) on disappeared
persons in Belarus, which has still not been acted upon by the Belarusian
authorities, and notes that recent legal developments may permit
the authorities of other countries to prosecute the suspects named
in its report.
9. In view of the above considerations, the Assembly invites:
9.1 the competent authorities of
the member States of the Council of Europe to fully and expeditiously investigate
all cases in which there is a reasonable suspicion that an enforced
disappearance may have occurred within their jurisdiction, and to
avail themselves of all legal means at their disposal to take jurisdiction
over cases that occurred in other countries whose authorities have
failed to take appropriate action;
9.2 the member States of the Council of Europe which have
not yet done so to sign and ratify the UN Convention. It also invites
those member States which have ratified the convention to contribute
actively to the functioning of this instrument, in particular by
making declarations under Articles 31 and 32 of the convention,
recognising the competence of the Committee on Enforced Disappearances
to consider communications from individuals claiming to be victims
of violations of this convention, following the example of Belgium,
France, Montenegro, the Netherlands, Serbia and Spain;
9.3 the member States of the Council of Europe to:
9.3.1 consider launching the process of drawing up a European
convention for the protection of all persons from enforced disappearance,
based on the achievements of the UN Convention;
9.3.2 give their unrelenting political support and make available
the necessary human, technical and financial resources to existing
and new national and international efforts aimed at resolving the
grave humanitarian crises caused by the numerous unresolved cases
of missing persons throughout Europe.
10. The Assembly calls on the Committee on Enforced Disappearances,
elected in May 2011, to make full use of its competences under the
UN Convention in order to play an active role in the prevention
and elucidation of enforced disappearances, in close co-operation
and co-ordination with the United Nations Human Rights Council and
its Working Group on Enforced or Involuntary Disappearances (WGEID),
whose humanitarian action without geographical limits deserves continued
support.
11. Finally, the Assembly encourages the European Court of Human
Rights and the member States to continue making determined use of
all instruments available under the European Convention on Human
Rights in order to protect against enforced disappearances and ensure
that perpetrators are held to account.
