Imagine your loved one simply "disappeared". You approach the local authorities and are met with blank stares. Years later you are still searching, wondering what happened to them or whether they are still alive. "Disappearances" have long been used as a brutal tactic of repressive regimes. In Africa, it has been documented that disappearances have taken place in 25 out of 47 countries in the region. But now a new campaign is calling for the speedy finalisation of a UN Convention for the Protection of All Persons from Enforced Disappearances. It's critical that families of the disappeared, civil society organizations and individual human rights activists in Africa get involved in the campaign, say Polly Dewhirst and Ewoud Plate.
Enforced disappearances are an ongoing worldwide phenomenon. While the exact numbers for and extent of disappearances in Africa is not known, estimates clearly run into the tens of thousands. After twenty years of debate, the United Nations is now poised to finalise an international treaty to deal with disappearances in September 2005. It is critical that African civil society organizations and families of the disappeared join the debate and ensure that this international legal instrument becomes a reality and addresses the needs of African victims.
The United Nations currently defines a disappearance as the deprivation of a person's liberty, in whatever form or for whatever reason, brought about by agents of the State (or by persons or groups acting with authorization, acquiescence or support of the State) followed by an absence of information or refusal to acknowledge the deprivation of liberty or information, or concealment of the fate or whereabouts of the disappeared person. It is the combination of the two main elements – the deprivation of liberty and the following refusal to admit by authorities to have anything to do with it – that make this practice particularly perverse.
Disappearances are considered ongoing crimes which should by their nature not be subject to prescription or statutes of limitation. The crime only comes to an end when the truth about the fate of the disappeared is revealed and the remains returned. The psychological consequences of this ongoing crime on the family members of the person made to disappear are enormous. Relatives are often trapped in an ongoing cycle of hope and despair about the fate of their loved ones and find it hard to find closure that is possible for victims and survivors of other human rights violations. Disappearances are very damaging for a civil society as a whole, as they are almost always committed with the purpose of repressing political opponents. When someone disappears, their entire family and sometimes community is terrorized, silenced and isolated from society.
The phenomenon of disappearances first came to light in the 1970s when it was used by repressive regimes in Latin America – notably in Chile and Argentina where thousands of political opponents of the Pinochet regime and Videla junta were detained and disappeared. Since then the practice has been become widely used by repressive governments around the world. In Sri Lanka alone an estimated 60 000 people have disappeared since the mid-1980s. More recently disappearances have been perpetrated in the former Yugoslavia, Iraq, Indonesia, Nepal, India (Kashmir), Burma and Colombia.
Disappearances have long taken place in all parts of Africa. In a preliminary research done by the Dutch project Linking Solidarity, disappearance cases were reported in 25 of 47 countries in the region, with eight of these countries reporting disappearances taking place on a large scale. These disappearances took place under differing circumstances. For instance in Algeria an estimated 3000 people have been disappeared since 1993 after being arrested by security forces. South African civil society organizations and the Truth and Reconciliation Commission have documented over 1500 apartheid-era cases. Thousands of persons have disappeared and continue to disappear in the large-scale conflicts of the DRC, Rwanda, Burundi and Angola as well in the less-publicised conflicts in places like Chad, Congo-Brazzaville and Cameroon. Despite the hard work of civil society organizations in some countries, it is very hard to pin down exact figures and very little formal information and documentation of disappearances currently exists. Sadly this lack of information has impacted badly at the international level where disappearances are not seen as an African issue.
Since 1981 the Latin American Federation of Associations of Relatives of Disappeared-Detainees (FEDEFAM) with strong assistance of international human rights organizations have struggled to have disappearances recognized as a crime against humanity and for the creation of a binding international instrument to stop and prevent them. Their pressure during the 1980s was successful: the UN adopted a Declaration on the question of disappearances in 1992 (which is a legally non-binding instrument). Two years later the Organization of American States adopted a Convention that is a binding treaty but only applies to the Latin American countries that ratified it. Since then family members of disappeared from Asia, Africa, Europe and the Middle East have joined them in a world movement campaigning for improving the means in international law to address the problem of disappearances everywhere where that violation occurred or could occur.
But the discussions and the drafting attempts of the text of a legally binding instrument with a universal scope stagnated for almost a whole decade, before they got re-launched and entered into its final stage three years ago at a meeting of UN Open-Ended Working Group tasked with developing this instrument. This working group has now met several times and will meet again in September this year. It is hoped that the country delegations conforming this UN working group will adopt a final text for the instrument so that it can be adopted by the Commission on Human Rights and the General Assembly of the United Nations next year. It is important that African families of the disappeared, civil society organisations and governments enter this debate and ensure that a strong and effective instrument is finalised, adopted and ratified by States as soon as possible.
The Importance of a Disappearance Convention for Africa
The instrument is important for Africa in many ways. Firstly the new treaty will fill in many gaps in existing international legal framework for the protection against enforced disappearances. The instrument will remedy the weakness or absence of norms by creating a wide range of obligations for the States that will ratify it.
The existing human rights norms at the international level prove to be particularly weak for the African continent. The African Charter of Human and Peoples' Rights does not contain any reference to enforced disappearances, which leaves the African Commission of Human rights ill-equipped to address disappearances case as such. Ratifying the new UN instrument will be a first recognition of the specificity and the particular seriousness of the violation of enforced disappearance by African governments.
In international criminal law, the only reference to enforced disappearance is to be found in the Rome Statutes establishing the International Criminal Court (ICC). The ICC only recognizes enforced disappearances as a crime against humanity (that is when disappearances occur as part of a 'massive and generalised attack against the civilian population'). There is no norm for disappearances occurring in a non-systematic way. Moreover the ICC only has jurisdiction over cases occurring on the territory of states that have ratified the Rome Statutes. Currently only 27 African countries have ratified the Rome Statute leaving just under half of the content outside its scope.
The most important new obligation set forth in the new treaty is that States will have to include the crime of enforced disappearance in their domestic penal law codes. Unlike Latin America, there is not one African country which has the crime of disappearance defined within its domestic law as a specific offence. The new treaty sets sharp standards that will guide the legislators of countries to adopt legislation that will become a deterrent for any person tempted to participate in the act of disappearing a person.
When ratifying the new instrument, States will have to recognise family members of the disappeared as another category of victims of the violation. States will have to take measures to respond to a right of these relatives to know the truth about the fate of the disappeared and to receive reparation. This reparation has to be interpreted in a very large sense as it will encompass compensation, rehabilitation, and guarantees for non-repetition.
The Role of African Countries in Negotiations
Participation of diplomats from African countries (with the sole exception of Morocco) has been very limited during previous working group sessions. The absence of Africa from discussions can be explained only partly by the typically limited diplomatic staffing of embassies of African countries in Geneva. It can also be attributed to a lack of concern of most African countries with this specific issue, even among countries that have a history of disappearances. Among those African representatives present there seems to be a critical lack of understanding of the technical issues at stake and it often appears that they are speaking without clear instructions from their home ministries.
Sadly most interventions from African countries are not very supportive of the NGO positions favouring a strong and effective document. Their positions often seem to be inspired by the sole concern of African governments to avoid contracting new obligations (especially if those entail financial costs) and not by any apparent solidarity with victims – African or otherwise.
One positive exception was the intervention of South Africa during a session in 2004. It was therefore a disappointment to note their absence from the debate in this year's first session.
Progress has been made on most of the substantive issues in the working group. Although there is consensus on most of the substantial issues, several questions remain open on the agenda of the next and possibly final session of the working group.
Key among these is the working group's need to find an agreement on the exact wording of a reference to comparable acts to disappearances when committed by non-state actors. A few countries have also demanded a clause allowing states to refuse information about an alleged disappearance to relatives on grounds of 'state security'. Families and NGOs find this unacceptable and in contradiction with the whole spirit of the instrument.
The group will further have to decide on the form of the instrument and on the monitoring body to be set up to watch over the compliance of states with their obligations under this new instrument. An autonomous convention on disappearances is by no means guaranteed at this point. There has been extensive debate at the UN about addressing the issue of disappearances through an additional protocol to the International Covenant on Civil and Political Rights (ICCPR) rather than a convention in its own right. Family groups and organisations worldwide are opposed to the idea of an additional protocol because it lacks not only the symbolic impact but also the legal and political teeth associated with an autonomous monitoring body.
The establishment of an independent and truly effective monitoring mechanism to deal with disappearance cases is considered a crucial feature of the new instrument. Considering those existing at the universal and regional level the envisaged UN monitoring body should be warmly welcomed by African citizens. Under the proposed convention a monitoring body would be created with powers to request, comment on and follow up reports from specific countries where disappearances may be taking place. Based on these reports it can condemn states and order investigations and even the payment of reparations. It can also organise its own independent inquiries, missions and investigations. This body will also produce an annual report of its activities which will make it more transparent and accountable.
The convention will have great symbolic value and raise awareness for disappearances around the world. Disappearances are a global plague and should receive the same recognition as torture for which the UN created the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1984. Its creation can provide the impetus for African families to speak up about the issue and put pressure on their governments not only to ratify the convention but also to start taking the issue more seriously in their home countries.
Polly Dewhirst is Project Manager of the South African Disappearance Project at the Centre for the Study of Violence and Reconciliation (CSVR) in Johannesburg, South Africa. Ewoud Plate is the Coordinator of the Project Linking Solidarity at the Humanist Committee on Human Rights, The Netherlands.
Originally published in Pamabazuka News, 4 August 2005.