Enforced Disappearance Convention to Enter into Force in December

The International Convention for the Protection of All Persons from Enforced Disappearance has now received the requisite number of ratifications, and will enter into force on 23 December 2010. This week Iraq became the twentieth State to ratify the Convention, in accordance with article 39(1). It becomes the ninth of the principal United Nations treaties in the area of human rights.

Article 2 of the Convention defines ‘enforced disappearance’: ‘For the purposes of this Convention, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.’ The abductions and rendition flights practiced by the Bush administration as part of the ‘war on terror’, and with the complicity of other governments, would appear to meet the definition. The widespread or systematic practice of enforced disappearance constitutes a crime against humanity (art. 5), a provision that essentially echoes the text of article 7 of the Rome Statute.

The Convention contains a number of provisions concerning cooperation and mutual legal assistance in the prosecution of the enforced disappearances. It does not, however, contain a clause prohibiting amnesty; this had been proposed during the drafting of the Convention but was dropped because of a failure to obtain sufficient support from the States participating in the negotiations. This suggests that claims that amnesties are prohibited by international law may be slightly exaggerated. There is a gap between wishful thinking and reality in this area.

The following twenty States have ratified the Convention: Albania, Argentina, Bolivia, Burkina Faso, Chile, Cuba, Ecuador, France, Germany, Honduras, Iraq, Japan, Kazakhstan, Mali, Mexico, Nigeria, Paraguay, Senegal, Spain and Uruguay.

The Convention provides for the establishment of a monitoring body, to be known as the Committee on Enforced Disappearance. The ten members of the Committee are to be elected from among nationals of the States parties.