An important United Nations convention against enforced disappearance now has the force of law. The International Convention for the Protection of All Persons from Enforced Disappearance was opened for signature in on December 20, 2005, and, five years later, it has now entered into force for the 21 countries that have, so far, taken the next step to ratify or accede to the Convention (and thereby become ‘parties’ to the treaty). The following are the states party to the Convention and, as such, legally required to abide by its terms and to submit themselves to the supervisory mechanisms established by the treaty: Albania, Argentina, Bolivia, Brazil (as of December 29), Burkina Faso, Chile, Cuba, Ecuador, France, Germany, Honduras, Iraq, Japan, Kazakhstan, Mali, Mexico, Nigeria, Paraguay, Senegal, Spain and Uruguay.
The treaty is one of the international human rights treaties that operates simultaneously as an international criminal law treaty (as is also, for example, the UN Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment). It establishes a comprehensive regime to ensure extensive duties to criminalize enforced disappearances and to establish broad grounds for a state’s jurisdiction to investigate, prosecute, or extradite a person to another treaty party. It is a telling sign of the ‘bite’ of this treaty that more than half the member states of the United Nations have not even signed it yet, let alone become party. It thus comes as no surprise that Sri Lanka is one such laggard. It is also hardly a surprise that the United States has also not even signed, given its ‘war on terror’ practices of secret detention and other sub-practices that count as enforced disappearance. But, shamefully, countries like the United Kingdom, Canada and Australia are also amongst those who have not even deigned to sign the treaty.
It is not unlikely that one reason for their reluctance is the existence of provisions on superior responsibility (including military command responsibility) and the likelihood that both state and individual responsibility will apply to conduct that contributes to disappearances in other countries and not only within states’ own territories. Even while most, if not all, the basic norms in the treaty also exist under customary international law (and, as such, bind all states whether or not they have become party to the treaty), the procedural mechanisms created by the treaty are important for institutionalized accountability.
As long as states like the US, UK, Canada and Australia stay outside the regime, they will be morally disentitled to advocate that Sri Lanka become party and the basis for them to push Sri Lanka on disappearances will rest on the less detailed norms of customary international law. Who can put pressure on countries like Sri Lanka to become parties to the Convention? On the list of parties to the Convention who can be counted as the founder states (in the sense of having been the first 20 states to ratify, which number is required by the treaty for the treaty to enter into force), there appear several states whose populations experienced in earlier times the horrors of authoritarian and militarized regimes that regularly abused human rights, including states in Latin America where the systemic use of enforced disappearances led to the coining of the term “to disappear” as a verb — notably, Chile, Uruguay, Argentina and Brazil. Founding Latin American parties also include countries that experienced less well-known waves of disappearances in the 1980s, such as Ecuador, Bolivia, Paraguay, and Honduras (the latter state now suffering a return to some of the repressive practices of the 1980s, since the military coup against President Zelaya in June 2009). In Europe, Spain, France and Germany make up an influential European cluster of states whose societies all have reason to make ‘never again’ the rule when it comes to enforced disappearances and allied practices, from torture to extrajudicial execution. Japan, Nigeria, and Mexico each represent a major state from Asia, Africa and North America, respectively. Thus, the ‘founding members’ core of the International Convention for the Protection of All Persons from Enforced Disappearance includes some influential countries. They should treat themselves as a ‘like-minded group’ that coordinates the efforts of the group’s members both to make the regime effective and to advocate that signatories become parties by ratification and non-signatories become parties by accession.
Without both pressure of this sort and the momentum of states like the UK, Canada, and Australia joining the treaty regime, there appears little prospect Sri Lanka will ratify the treaty with ‘white vans’ abductions and like activities not having ended with the end of the war against the LTTE last year. The Sri Lankan Commission of Inquiry into Disappearances, appointed in 1995, recommended that causing the disappearance of persons be made a specific offence under the Penal Code of Sri Lanka. That recommendation has not been implemented. That said, existing Penal Code provisions are almost certainly adequate to cover many aspects of the phenomenon of enforced disappearances, but action against those perpetrators identified by this Commission is still pending. Not even disciplinary action against police and security forces personnel has been taken.
The Red Cross’ press release announcing the entry into force of the International Convention for the Protection of All Persons from Enforced Disappearance can be found at: http://www.icrc.org/eng/resources/documents/news-release/2010/missing-news-2010-12-23.htm. We also reproduce the text of the press release below:
ICRC welcomes entry into force of convention against enforced disappearance
23-12-2010 News Release 10/235
Geneva (ICRC) – The entry into force of the International Convention for the Protection of All Persons from Enforced Disappearance is a milestone event in the fight to prevent and eradicate disappearances, said the International Committee of the Red Cross (ICRC) today.
“It is an important achievement in the struggle against a cause of indescribable fear and sorrow for hundreds of thousands of people worldwide,” said Olivier Dubois, deputy head of the Central Tracing Agency and Protection Division of the ICRC.
“This convention will certainly contribute to greater protection against enforced disappearance. States that are party to it must implement it into national law. They must put it into practice and make enforced disappearance an offence under their national criminal law.”
Enforced disappearance is a crime under international human rights law and – when it occurs in war – under international humanitarian law. The convention contains a series of measures to prevent forced disappearances. For example, it requires that any person deprived of liberty must be registered by the detaining authority. It also enshrines the right of any victim to know the truth about the circumstances of an enforced disappearance and the fate of the disappeared person. The convention also requires suitable criminal sanctions to be taken against persons who commit enforced disappearances. As of today, the provisions of the treaty are legally binding on the first 20 States [* see list at end] that have ratified or acceded to it.
Iraq, which acceded to the treaty 30 days ago, triggered the entry into force. Tens of thousands of people in Iraq are still hoping to receive news of their relatives who have gone missing in the country since the 1980s.
In every situation of armed conflict or internal violence, people disappear. In Bosnia and Herzegovina, to mention just one other example, the fate of more than 10,000 people who went missing during the conflict in the early 1990s remains unknown.
The ICRC works all over the world to prevent people from going missing, to help clarify what happened to those who do disappear and to support the families of missing persons. The ICRC has also actively supported the process of drafting the convention and is committed to achieving its widespread ratification and implementation.
For further information, please contact:
Nicole Engelbrecht, ICRC Geneva, tel: +41 22 730 2271 or +41 79 217 3217
or visit our website: http://www.icrc.org
* Albania, Argentina, Bolivia, Burkina Faso, Chile, Cuba, Ecuador, France, Germany, Honduras, Iraq, Japan, Kazakhstan, Mali, Mexico, Nigeria, Paraguay, Senegal, Spain and Uruguay. It will also be binding on Brazil as of 29 December 2010.
For a list of signatories and of the current 21 parties (those who have gone beyond signature to ratify the convention), see: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-16&chapter=4&lang=en The UN updates the status of parties on a regular basis.
For the text of the Convention discussed below, see:
For background, see