You are on page 1of 5

Statement of Mr.

Rainer Huhle, Member of the Committee on Enforced Disappearance Dhaka, September 15, 2012

Ladies and Gentlemen, distinguished guests and participants in this important conference,

allow me to begin my remarks on a rather personal note. I have been invited to this event in my capacity as an independent expert serving on the UN Committee on Enforced Disappearance. We independent experts do not represent our own countries but serve exclusively under the guidance of our best knowledge of the provisions of international law and procedures to preserve our common human rights, in this case of the Convention against Enforced Disappearance. I cannot help, however, briefly referring to the fact that I come from Germany. Unfortunately, the German Nazi regime was the first to devise a strategy that we call today “Enforced Disappearance”. During World War II, the Nazi regime secretly transferred clandestinely thousands of suspected resistance fighters from the occupied territories in Western Europe to Germany. The name for this strategy was telling: Nacht und Nebel (Night and Fog). Such was the name of the decree from December 1941 that established officially – though of course secretly – a whole set of practices leading to enforced disappearances of persons arrested by Nazi forces. A trial was to be held only in cases where the death penalty was expected, in other cases persons accused of resistance against the occupation were to be deported to German concentration camps. The logic behind the procedure was the same terrible way of thinking that became familiar in later decades in many places of the world: “An effective and lasting deterrent can be achieved only – decreed the Nazis - by the death penalty or by taking measures which will leave the family and the population uncertain about the fate of the offender”. The Nazi regime understood the fact that this procedure was even more threatening than the death penalty – relatives and friends were terrorised by leaving them without any notice regarding the destiny of their family member who had vanished without leaving a trace. Perhaps the Nazis were not the inventors of this sinister procedure. But certainly it was during the International Military Tribunal held over the principal Nazi leaders in my home town of Nuremberg in 1945/46 that this crime was first identified as a grave breach of international law. In fact, German Army General Wilhelm Keitel received a death sentence particularly for his Night and Fog order, and the topic was discussed during the trial in much detail. Unfortunately, the Nuremberg sentence’s deterrent effect was not very effective. Soon after these verdicts, enforced disappearances occurred on a massive scale in many colonized territories and still later in several Latin American military dictatorships. I will not enter in details here, I think you all know the bitter stories behind the world wide spread of this heinous crime.

But let me briefly point to the fascinating story of how resistance towards enforced disappearance produced a worldwide mobilization against this practice and even a new and better understanding of the special nature of this crime. Shortly after the coup d’état of Pinochet in Chile, families of disappeared persons, human rights lawyers, church representatives and other concerned people joined forces to denounce, nationally and internationally, the practice of detaining people and then concealing their further fate. The same happened a few years later in Argentina where the famous mothers with their white headscarves bearing the names of their disappeared sons and daughters did not stop claiming for the reappearance of these family members. “Alive they were taken, alive we want them back”, was what they shouted into the face of the Government. It was there that the term “Enforced Disappearance” or “Detention-Disappearance” has its origin. And not only the name. Out of the suffering of these victims of enforced disappearance we all came to understand that this is a crime beyond simply killing opponents or detain them under arbitrary conditions, beyond just denying the truth and even beyond the torture that normally was part of this multi-faceted crime. Fortunately, their clamor was heard in the world, in the Inter-American Human Rights system and also in the United Nations. Here is a brief resume of the most important steps on the large way that finally led to the International Convention for the Protection of All Persons from Enforced Disappearance:

1978: Resolution 33/173 of the UN General Assembly expresses strong concern about a growing number of “Disappeared”. 1980: The then UN Commission on Human rights establishes a Working Group on Enforced or Involuntary Disappearances, to assist families in determining the fate of their disappeared relatives. The WGEID consists of five independent experts. It receives individual petitions, but its mandate is exclusively humanitarian. 1988: Velásquez Rodríguez decision of the Inter-American Court of Human Rights establishes important jurisdictional principles for the definition and legal evaluation of enforced disappearances. 1992: Declaration of the UN General Assembly on the Protection of All Persons from Enforced Disappearance, reaffirming that “Enforced Disappearance” is an international crime against which all states are obliged to fight. 1998: the UN Sub Commission of Human Rights presents a first draft for a Convention for the Protection of All Persons from Enforced Disappearance. 2001: The independent Expert Manfred Nowak finds that the crime of Enforced Disappearance ist not yet sufficiently configured in International Law and that, therefore, it is recommendable to adopt a special Convention against this crime. 2003: The Human Rights Commission begins to work on such a Convention. More than 70 States as well as numerous NGOs, associatioins of families and independent experts contribute to the drafting process which take three years.

2006: The UN General Assembly adopts the International Convention for the Protection of All Persons from Enforced Disappearance. Different from the Resolutions of 1980 and the Declaration of 1998 the Convention is a legally binding treaty. 2010: After the necessary ratifications by 20 States the Convention enters into force on December 23. 2011: In May are elected the 10 members of the “Committee against Enforced Disappearance”, according to Art. 26 of the Convention. 2012: By June 2012 91 States had signed the Convention and 33 have ratified it.

Important features of the Convention: The prohibition of “Enforced Disappearance” is absolute. (art. 1) The Convention must be transformed into national legislation: Enforced Disappearance must be configurated as a crime in the criminal code (art. 4). There must be established comprehensive guarantees to prevent Enforced Disappearance and impunity must be excluded. The Convention provides a series of mutual obligations of member States for the prevention and sanction of Enforced Disappearance. The definition of victims (art. 24) is ample and realistic: Victims are not only the disappeared persons but every person that suffers directly damages from the desappearance, p.e. Family members, colleagues, close friends and other closely alleged persons. Every Person with a „legitimate interest“ like the family and their representatives have the right to access to relevant information that might lead to clarify the disappearance (art. 18). Victims have a right to material and moral reparation. There is a right to guarantees against repetition of the crime. It includes guarantees for family members, witnesses etc. There is a Committee against Enforced Disappearances which Receives and analyzes State Reports ; Can carry on visits in member States; Receives urgent submission in individual cases of Enforced Disappearance and intervenes with States in order to achieve rapid solution (Art. 30); Deals with communications by individuals (art. 31) or other States (art. 32) about violations of the Convention. It can demand from states measures to correct these infringements. However, the functions of the Committee under articles 31 and 32 become only effective if States make a separate declaration in this sense.

Ladies and Gentlemen,

as you see, this new Convention is again an international instrument that asks for a series of measures that can, if duly implemented by the State parties, effectively contribute to eradicate the crime of enforced disappearance. Should that be a reason why States might hesitate to accede to this Convention? I believe not. To the contrary, any Government that understands itself as representing the best interests of its citizens will find in this Convention an excellent tool to sharpen its own legislation, to advance its own institutional reforms and to raise awareness among its officials to prevent this crime that does so much harm to the victims. Asian nations so far have kept, with some exceptions, aloof from this Convention. Perhaps, and this is understandable considering the heavy costs that the struggle of many Asian people for independence has imposed on them, perhaps this reluctance stems from a feeling that these international human rights treaties are a new form of colonialism, or at least an undue interference in national sovereignty. Well, yes, human rights international law does set limits to the arbitrary exercise of national sovereignty. Its provisions say, as already the Charter of the United Nations said, that violations of the basic human rights and human dignity are no longer a concern only of national order but of the whole world. That is the basic lesson the Nazis had to learn in Nuremberg, and the fact that Bangladesh today is a State Party to the International Criminal Code shows that this lesson has been learned in this country, too. I want to congratulate the people and the Government of Bangladesh for this important step. So, if human rights indeed set limits to national sovereignty, the question is whether this is done in an even and just matter, or, as often affirmed, in an arbitrary manner. I cannot deny that the interventions of the international community to protect human rights are not always decided upon according to even and equal standards. This is indeed one of the big challenges of the United Nations and their Human Rights Regime. But is this a reason for smaller or poorer countries to keep absent? I strongly believe that the contrary is true. In its resolution 18/6 of 29 September 2011, the Human Rights Council established, for a period of three years, a new special procedure entitled “Independent Expert on the promotion of a democratic and equitable international order”. The mandate holder, Alfred de Zayas, in his first report that was released this week, stressed the interrelationship between the internal democratic principles of States and a democratic international order as well as the interdependence of the fight against poverty and the struggle for human rights. “With regard to a more equitable international order, the economic dynamics that make the rich richer and the poor poorer must be changed. This may entail, among other things, the cancelling of the debts of many developing countries,” he states in this report. “An international order in which only a few powerful players take all the decisions, often disregarding the consequences for the less powerful, is hardly democratic,” he critized.

But he also adverted that “greater efforts are needed to limit current attempts to shrink the space of civil society at the international and domestic levels. Arbitrary and undue restrictions on the effective enjoyment of fundamental freedoms, including the freedoms of association, peaceful assembly and expression, seriously obstruct the realization of a more democratic international order.” I, too, believe that the best way to strive for a just international order is to do anything possible to preserve and improve the democratic order and the justice system in every state, and to elevate the level of respect for all human rights. And I think that the Convention against Enforced Disappearance provides an excellent instrument for that purpose. In the Committee to which to belong I am honored, we have 2 members from Africa, 2 from Latin America, 2 from Asia, and 4 from Eastern and Western Europe. I would be very pleased if at the next elections for this Committee there could be more candidates from Asian member States. If Bangladesh takes a lead in this effort, it would do a service to its citizens as well as to the improvement of the international order. Thank you all for your patience and attention.