The 48th Session of the Human Rights Council
13 September - 8 October 2021
ITEM 3 – Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.
Interactive Dialogue with the Working Group on Enforced or Involuntary Disappearances
By: Payton Focht/GICJ
The Interactive Dialogue with the Working Group on Enforced or Involuntary Disappearances was the 13th meeting of the 48th Session of the Human Rights Council on 21 September. This meeting focused on the Working Group's report on enforced disappearances in the context of transnational transfers. This is when states have agreements to detain individuals under one jurisdiction and transfer them to another state’s jurisdiction. This is problematic because it doesn’t allow for appropriate due process, and individuals have been abducted for various amounts of time with no contact with families or lawyers. The Working Group has documented massive numbers of disappeared persons but was unable to complete any country visits due to the Covid-19 pandemic.
The debate reflected the topics set out in the report. Henrikas Mickevičius, the Vice-Chairperson for the Working Group on Enforced or Involuntary Disappearances, discusses the issue of enforced disappearances in the context of transnational transfers. He explains how enforced disappearances take different forms, and the focus must be the needs of the victims and their families. Many of the delegations expressed an understanding of the severity of the issues at hand and were receptive to the report done by the Working Group.
Geneva International Centre for Justice is concerned that the Working Group visit to Iraq still has not happened. Iraqi legislation in force, implementation, and the authorities’ practices do not comply with the Convention’s obligations. We think the visit is crucial as the Iraqi authorities continue to avoid implementing the recommendations from 2016 and 2020. This encompasses searching for the disappeared persons or investigating their alleged enforced disappearance to ensure that the Convention is fully implemented de jure and de facto.
The present report reflects the activities, communications, and cases examined by the Working Group on Enforced or Involuntary Disappearances from 16 May 2020 to 21 May 2021. The Working Group on Enforced or Involuntary Disappearances has been mandated to assist families of disappeared persons in discovering the fate and whereabouts of their disappeared relatives, to assist States and monitor their compliance with their obligations derived from the Declaration on the Protection of All Persons from Enforced Disappearances, and to provide states with assistance in the prevention and eradication of enforced disappearances. The number of cases under active consideration not yet clarified, closed, or discontinued stands at 46,490 in a total of 95 States. During the reporting period, 376 cases were clarified. In 2006 the Convention on the Protection of All Persons from Enforced Disappearances was adopted. Yet, this human right violation continues to be violated across the world. Enforced disappearances, how we perceive them, and how the international community must deal with them are ever-changing. New problems arise with time, and states must be equipped to handle these changes. Transnational transfers lead to an increasing number of enforced disappearances, and states must take the time and effort to address these growing concerns.
Report of the Working Group
In September of 2019, the Working Group announced that it would start documenting violations of enforced disappearances committed by non-state actors in addition to state actors. Those mostly came from Libya and Yemen (14 cases). Also, there were no country visits because of COVID-19, and there is no date of when they will resume the visits.
Iraq has 16,423 outstanding cases at the beginning of the reporting period, four cases transmitted to the government during the reported period, 16,427 outstanding cases at the end of the reporting period, two communications sent for urgent appeal, and one allegation letter. I would also like to note that Iraq has the highest number of outstanding cases according to WG by a lot.
The main discussion on this report is enforced disappearances in the context of transnational transfers. The documented cases are states resorting to extraterritorial transfers that led to enforced disappearances with other states’ participation, support, or agreement, to capture their nationals or third-country nationals, often as part of supposed counterterrorism operations. Some of these EDs occurred within the context or the margins of regular expulsion procedures, while others were carried out as part of covert extraterritorial operations, including so-called extraordinary renditions. This is a violation of the non-refoulement obligation of the host state, as included in Article 8.
States reportedly capture and detain individuals abroad and transfer them under their jurisdiction. This would primarily include swift legal actions to place individuals outside the protection of the law and facilitate their subsequent transfer, often in cooperation with the host state. In addition, several states have allegedly sought to sign bilateral security cooperation agreements, which often contain broad and vague references to combating terrorism and transnational crime. Reportedly, host states conduct around-the-clock surveillance, followed by house raids and arbitrary arrests, often in undercover operations. Victims are then taken by force to unmarked vehicles, and there does not seem to be any legal basis for the arrest. The officers did not identify themselves, no arrest warrants were presented, no explanations were provided, but victims were taken by force from their home or in the street and sometimes blindfolded, hooded, and handcuffed.
Cases show that people were forcibly disappeared for 24 hours to three weeks prior to deportation. During that, there are reports of torture and ill-treatment to obtain their consent to voluntarily return to the other country and extract confessions that would inform criminal prosecution upon arrival in the other country. They were also often denied access to medical care, legal representation, there was no due process, and their family members were unaware of their fate and whereabouts.
There was use of unmarked aircraft and commercial airlines for these transfers.
Upon arrival in the host state, individuals reported that they were indicted and remanded in pretrial custody pursuant to counterterrorism legislation and emergency decrees. In many cases, the transfers appeared to have taken place shortly after the entry into force of such cooperation agreements, which would indicate that both the agreements and the capture of those individuals were part of a somewhat premeditated strategy. In some cases, the transfers have revoked the citizenship or passport of targeted individuals.
Allegations were received of intimidation and harassment of the individuals’ relatives because of their activism and calls for truth and justice in the cases.
The Working Group feels that the practice of states resorting to the deprivation of liberty of individuals and refusing to acknowledge it or disclose the fate or whereabouts of the individual concerned for whatever purpose or duration in whatever context constitutes an enforced disappearance. They also feel that any Interstate agreements or arrangements, the exception of which may result in substantial interference with human rights, must be publicly accessible.
There is a disregard for the rule of law and legal safeguards to protect the rights and the lack of accountability for alleged victims. No effective investigation has been conducted, and no one has been held accountable for the reported human rights violations. In response to the allegations, the authorities have either denied that the operations took place or maintained that they were necessary legal and proportionate to the need to neutralize an immediate threat to national security. States have largely denied victims and their families the right to an effective remedy which should at a minimum guarantee the cease of violations restitution compensation rehabilitation satisfaction and guarantees of non-repetition.
The Working Group has found an increase in the tendency to resort to transnational transfers that circumvent due process. Even if the location of the individual is unknown for a short period of time, this is still considered enforced disappearance. The WG has observed that these transfers embody a denial of justice insofar as individuals are deprived of liberty in the form of secret detention and are removed from the protection of the law. They are deprived of the rights to an effective remedy and fair trial in denial of the presumption of innocence. In addition, the individuals are not able to challenge the lawfulness of their detention, are denied legal representation, and are often induced into a forced confession of guilt under duress. The WG recalls that such practices can also facilitate the perpetrator of torture and other cruel, inhumane, or degrading treatment or punishment and can constitute a form of such treatment under certain circumstances.
Recommendations were to cease justification, review and repeal laws and agreements that allowed this, recognized by the states that a short duration is still enforced disappearance, ensure that Interstate agreements or arrangements are publicly accessible, provide that agreements are in full compliance with human rights obligations, implement procedural safeguards, comply with oversight and procedural safeguards, carry out comprehensive individual assessments, conduct independent and effective investigations into possible violations, hold perpetrators accountable, and provide victims and their families with rights to an effective remedy, ensure that relatives lawyers and human rights defenders are not subject to any form of intimidation harassment or reprisal, strengthen parliamentary or judicial that oversee security agencies that are suspected a transnational transfers.
Interactive Dialogue with the Working Group
The Interactive Dialogue with the Working Group on Enforced or Involuntary Disappearances was the 13th meeting of the 48th Session of the Human Rights Council on 21 September.
Henrikas Mickevičius was the speaker on behalf of the Working Group. He began by referencing the report and that the report was not a complete representation of the magnitude of the situation. He mentioned that enforced disappearances take many new shapes and forms. It is evolving with time; considering this, the international community must address and evolve with the ever-changing landscape of enforced disappearances. One of these new changes in disappeared persons is transnational transfers that often lead to enforced disappearances. The issue of transnational transfers was discussed in detail in the report.
Henrikas Mickevičius took great care in emphasizing that any and all actions taken must center the victim and consider their needs. This includes the needs of the families and the communities, as they are included in the victim label.
He emphasized that there were no country visits because of the Covid-19 pandemic. Country visits allow for gathering firsthand accounts concerning enforced disappearances, listening to victims and civil society organizations, and reaching a better understanding of the root causes and implications of the crime in daily life. Also, it allows the working group to prevent enforced disappearances, a function that is often disregarded. The lack of country visits by the Working Group is concerning, and they hope to resume as soon as it is safe to do so. They also asked any countries that have received a request of visitation by the working group to accept the request and allow visitation.
He then discussed a progress update on Albania and The Gambia. In Albania, some progress was made, but the overall efforts are fragmented and slow due to insufficient political will. There needs to be an overall of the current institutionalized framework with a “one-stop-shop” for victims and families. For The Gambia, the country has taken positive steps and the government has implemented several recommendations from the Working Group. However, crucial access to justice, remedy, and reparations for victims have yet to be enacted. The legal framework is insufficient and needs further efforts.
The international community needs to put in efforts to fix insufficient sectors to eliminate enforced disappearances worldwide. The international community needs to have commitment and determination to end this human rights abuse. He reminds us that behind every case, there are human beings that have been subject to one of the worst human rights violations. The term “victim” goes beyond the person subject to enforced disappearances, it includes the families and the communities, as they are affected also affected by these abuses. What has been done so far by individual states and the international community is not enough. We need states to work with the Working Group to combat and eradicate enforced disappearances. The Working Group asked the international community to come together to tackle this issue.
Henrikas Mickevičius’s response to common questions and comments by states began with thanks for acknowledging the seriousness of enforced disappearances; in certain circumstances, it can amount to crimes against humanity. Greece asked, what can be done to prevent/ combat transnational transfers? The answers consisted of ceasing justification on the grounds of national security and combatting terrorism. Agreements between states should fully comply with human rights law, the full implementation of safeguards upon arrest, and consistently carry out assessments to determine if individuals bear a risk when taken back to another country and what those risks may be. Some delegations brought up the trustworthiness of the sources relied upon by the Working Group; the Working Group takes allegations in good faith and operates with objectivity, independence, and impartiality.
The Iraq delegation has stated that they welcome the working group for a country visit when the pandemic permits. The Cuba delegation has declared that they have no cases of disappeared persons; they have a database that updates in real-time. Cyprus requested access to Turkish archives and military zones to find missing persons. Croatia is still searching for 18,088 people from the Yugoslavia war. They request access to archives and disclosure in good faith to find these disappeared persons. Belarus brought up the native children that have disappeared and been killed in boarding schools in Canada. They stated that the working group has no moral right to ignore these widespread incidents, and the international community must ensure accountability and prevention.
The Civil Society generally agreed with the Working Group. Many reiterated that states need to stop the intimidation of families searching for loved ones and other human rights activists looking for disappeared persons. This hurts the process of finding closure and upholding human rights obligations. They also discussed the lack of publicity that disappeared persons in the middle east are receiving. This world area has some of the highest numbers of disappeared persons and is not receiving enough attention. Western countries have often chosen to turn a blind eye to these issues, despite participating in military occupations in the middle east for over a decade. NGOs remind the West of their empty promises and encourage the international community to help those in need in war and terrorist stricken areas.
Position of the Geneva International Center for Justice
GICJ would like to state that the enforced disappearance issues in Iraq, according to our sources, are between two hundred thousand and a million disappeared persons since 2003. The Iraqi authorities and its militia used the pretext of fighting terrorism to justify the abduction of thousands of innocent civilians for a sectarian agenda. GICJ is concerned that the visit to Iraq still has not happened. We think the visit is crucial as the Iraqi authorities continue to avoid implementing the recommendations from 2016 and 2020. In addition, we would like to stand in solidarity with the recent discovery of native children that were enforceable disappeared and killed in boarding schools in Canada. This is a grave human rights violation, and Canada must put forth massive efforts to rectify the situation. They must release the identities of the children killed, ensure that the families are taken care of emotionally and financially, and take steps to ensure this type of systematic enforced disappearance and massacre does not happen again. The issues of enforced disappearances are widespread and often systematically ignored by governments. The international community is responsible for holding each other to a higher standard and ensuring that these issues do not go unnoticed, undocumented, or without justice for victims and their families.
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Previous Reports from the 48th Session of the UN Human Rights Council