The Disappeared - A New Treaty

The Disappeared - A New Treaty

Simply Gone

By Steve Crawshaw, London director of Human Rights Watch

Published in The World Today

Not for the first time, world justice is being tugged in two opposite directions. The latest developments in international law mean that the duty to prosecute those involved in forced disappearances – arbitrary arrest, frequently followed by torture and murder – is clearer than ever. After two decades of discussion a key new draft treaty agreed in September, is likely to be adopted by the UN General Assembly this year. At the same time, the world’s most powerful government apparently believes it is authorised to disappear people if and when it wishes. Washington argues, in effect, that this is helping to make the world safer, and those who are concerned about disappearances are giving comfort to the perpetrators of terror.

Disappearances have always been a form of officially sponsored lawlessness. The Nazis permitted themselves, by means of the Night and Fog decree of December 1941, to seize people from their beds, never to be seen again. An explicit aim was to free the Third Reich from cumbersome legal protection about the treatment of prisoners. If foreign authorities asked about detainees, they were told, 'that they were arrested, but that proceedings do not allow any further information'. For the Nazis, this seemed a legitimate way of doing business. They argued that holding people in secret locations would be a more effective 'deterrent' than the soft option of allowing prisoners to receive Red Cross parcels.

In Stalinist Russia, too, such practices were unsurprisingly widespread. The rule of law was not the Soviet Union's strong point. But it was the military regimes in Latin America which, especially in the 1970s and 1980s, ensured the word desaparecidos, 'the disappeared', became a widely understood shorthand for those who are dragged off to police stations and secret interrogation centres, often never to be seen again.

Symbol of Resistance

Like 'final solution' in the 1940s, and 'ethnic cleansing' in the 1990s, the euphemistic term 'disappearance', 'So sorry, your husband seems to have just disappeared', came to be seen as a blunt synonym for brutal crime.

The authorities in Argentina, Chile, El Salvador, Honduras, Peru and elsewhere felt shamelessly able to deny knowledge of somebody they had carted away from his or her home just a few hours earlier. Police laughingly told the wife of Jacobo Timerman, a leading Argentine journalist, when she reported his arrest: 'That's impossible; there were no anti-subversive operations in that area last night. Maybe your husband got bored of you and went off with his mistress.' The police handed her the paper she had requested and declared: 'You can imagine what you can clean with this piece of paper.'

Some, like Timerman, eventually returned alive. Thousands more did not. The white-scarved Mothers of the Plaza de Mayo in Buenos Aires became the visible symbol of resistance - defying arrest as they publicly displayed the names and photographs of those whom the regime had dragged from the street or their homes. Some of those mothers were themselves abducted.

Even murderous regimes rarely boast of killing their citizens. 'We have no knowledge of this person' became a convenient way of disposing of those whose existence was an annoyance. The once intransitive verb 'to disappear' became a deadly transitive. The generals who oversaw a policy of disappearing people - 'fighting the terrorists', as they saw it - were confident they would never be prosecuted for doing so. No corpse, no prosecution. It seemed as simple as that.

This was by no means just a Latin American disease. Even as disappearances waned there, with the establishment of elected democracies, the fondness for disappearing people elsewhere continued. In Algeria, in the 1990s, more than seven thousand people disappeared, mostly at the hands of the security forces, in an alleged attempt to bring stability in the face of an Islamic radical threat. In their struggle with Maoist insurgents, Nepali security abducts people on a regular basis.

In Chechnya, Russian and Moscow-backed forces continue to disappear people. Thousands have been abducted since the second war in Chechnya began in 1999; no one has been seriously punished. Russia is a world leader in enforced disappearances; a report published by Human Rights Watch in March 2005 described the pattern of disappearances in Chechnya as having reached the level of 'crimes against humanity'.

Growing Pressure

The pressure to recognise forced disappearance as a serious crime has steadily grown. In 1992, the UN General Assembly adopted a declaration which stated that such practices were 'a grave and flagrant violation of human rights... and a violation of the rules of international law'. The statement had some significance, but was not binding. In 1994, the Organisation of American States adopted a convention on forced disappearances. But it was geographically limited, and enforcement mechanisms were weak.

In 1998, the Rome Statute of the International Criminal Court laid down for the first time the principle that widespread or systematic disappearances may be crimes against humanity. In 2001, a working group was set up to prepare the text for a UN convention, not least because of the pressure from relatives and nongovernmental organisations. Last September - almost speedy by UN standards, especially given the complexity of the issue - a final text was agreed.

The Draft International Convention for the Protection of All Persons from Enforced Disappearances is to come before the next session of the General Assembly. Until now, there have been only seven core human rights laws, including those dealing with torture, racial discrimination and the rights of the child. The rare creation of a new convention is an important signal.

The convention establishes the right not to be subjected to enforced disappearance under any circumstances, including war or threat of war, internal instability or any other public emergency. Countries which ratify the convention undertake to make enforced disappearance an offence under national law. States can prosecute suspects even if the crime has not been committed in their territory, or against their subjects. The defence of superior orders is not permitted. In short, the loopholes and legal escape hatches have been closed.

No Hiding Place

The convention guarantees anyone with a legitimate interest, information about where the person deprived of liberty is being held, and - in the event of death - the circumstances of death and where the body is buried. The wording of the convention ensures that disappearers - torturers, murderers, call them what you like - can no longer be confident of avoiding the prospect of justice for all time.

Unsurprisingly, Latin American countries, which suffered most from disappearances in the past, have been at the forefront in pressing for the convention. They understand why rules matter. Britain, along with a number of European countries, played a constructive role. Given the continuing pattern of officially sponsored kidnap and murder in Chechnya, it is perhaps equally unsurprising that Russia has opposed the new convention tooth and claw.

Making People Vanish

It is also revealing that the world's most powerful democracy has been another key opponent. Partly, this reflects the United States' long-term allergy to international law and jurisdiction. To take just one example, America waited forty years before signing the 1948 convention on genocide.

On this occasion the US attitude is about more than a generalised mistrust of world justice. Depressingly, twenty-first century America has good reason to fear a convention that seeks to prevent and outlaw enforced disappearance and to hold responsible those who permit or encourage it.

The furore in recent months over secret Central Intelligence Agency flights to and from Guantanamo Bay and Afghanistan has shone a spotlight on the possible existence of secret interrogation centres on the European continent. The allegations have caused a storm of indignation, and European governments are seeking answers from Washington, not always with much success.

But even before the latest dramas, the US administration made little secret that it apparently feels entitled to make people vanish. A Human Rights Watch report published in October 2004, The United States' Disappeared: The CIA's Long-Term Ghost Detainees, catalogued those whom the Americans have simply removed from circulation.

Some of the names in that report were taken from a White House publication, George W. Bush: Record of Achievement, Waging and Winning the War on Terror. Many of the detainees may be unsavoury characters, with strong alleged links to Al Qaeda. If the allegations against them are accurate, they deserve to be prosecuted and punished.

But the new convention makes clearer than ever that there are no circumstances under which detainees can simply be hidden - from the Red Cross, from their families and from any form of oversight by the outside world. Hiding prisoners is a recipe for torture and more. It does not make the world safer.

It is encouraging that, as the new convention clearly shows, there is fresh determination to ensure that disappearances will perhaps no longer go unpunished - and thus may be prevented. But, as the twinned attitudes of Washington and Moscow indicate, the victory is still far from complete.

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