Enforced disappearance, torture and arbitrary detention
France and the fight against enforced disappearance, torture and arbitrary detention
Current state of affairs and context
Enforced disappearance is the abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, for political reasons, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, placing the disappeared person outside the protection of the law. Such disappearances, which go both unsolved and unpunished, constitute serious violations of human rights that must be fought against.
According to the latest report from the Working Group on Enforced or Involuntary Disappearances, published in March 2012, 53,778 cases have been reported since 1980. Over 42,000 of these cases, involving 82 States, remain unsolved.
For many years, the lack of any specific mechanism for the protection of victims allowed the authors of such practices to go unpunished. While the Geneva Conventions and their protocols cover enforced disappearances in times of war, the provisions of international humanitarian law do not apply in either unconventional warfare or peacetime situations. The common and systematic practice of enforced disappearances in Latin America in the 1970s prompted the United Nations to draw up a legal instrument outlawing it.
Considerable progress has been made since 20 December 1978, the date on which the General Assembly of the United Nations, at France’s instigation, adopted its first resolution on disappeared persons.
France’s long-term commitment
France has been very actively engaged for many years in combating enforced disappearances:
France provided the initiative for resolution 33/173 of 20 December 1978 and presided over the negotiations on the Declaration on the Protection of All Persons from Enforced Disappearance adopted by the United Nations General Assembly (UNGA) in its resolution 47/133 of 18 December 1992;
the draft international convention on enforced disappearances was drawn up by a Sub-Committee on Human Rights, which completed its work in 1998 with a draft binding instrument drawn up by French expert Louis Joinet;
France chaired the Working Group set up by the United Nations Human Rights Council to draw up a draft international convention for the protection of all persons from enforced disappearances. In accordance with the relevant UNGA resolution, in recognition of the crucial role played by France on this issue for over 25 years and in an unprecedented break with UN practice on the opening of a convention for signature, the signing ceremony was held in Paris.
France ratified the International Convention for the Protection of All Persons from Enforced Disappearance on 23 September 2008. France also recognised the competence of the Committee on Enforced Disappearances in its declaration of 9 December 2008, as provided for in article 31 of the Convention.
France’s national legislation is largely compliant with the stipulations of the Convention. A draft bill containing measures to bring criminal law into line with the Convention was tabled in the French Senate on 11 January 2012.
France regularly organises and takes part in related events, such as the conference held in Paris in May 2012 on "The Issue of a Universal and Effective Implementation of the International Convention on the Protection of All Persons from Enforced Disappearances".
Torture and abuse are common practice in many countries. Torture is all the harder to combat in that it frequently takes place in detention centres that are either secret or difficult to access. The global war on terrorism declared in the wake of the terrorist attacks of 11 September 2001 has further reinforced this trend, in that some States have no hesitation in using the fight against terrorism as a pretext for engaging in torture.
Those numbered among the victims of torture include political opponents or human rights defenders, members of religious minorities, homosexuals and persons suspected of terrorism. That said, common criminals may also be subject to such practices in countries with little respect for human rights, all the more so if they are particularly vulnerable by virtue of their gender, age, social or economic class or legal status (such as that of refugee).
There are many causes of torture and abuse: apart from its possible use for the purpose of political repression, the practice of torture is often linked to a chronic shortage of financial and technical resources, to poor training of law enforcement officers, and to a climate of impunity that may exist within certain countries where a failure to prosecute and criminalise acts of torture and abuse only serves to encourage such practices.
France is committed at several international levels to combating torture and other cruel, inhuman or degrading treatment or punishment.
France has ratified the 1984 International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed by 153 States. The Convention puts victims at the heart of its normative mechanism, partly by combating the impunity enjoyed by the perpetrators of such acts in authorising the arrest of alleged torturers on the sole grounds of their presence in the territory under a State Party’s jurisdiction and also by defining the widespread and systematic use of torture as a crime against humanity.
The Convention also established a Committee Against Torture, to which States must report every four years. France submitted its most recent report in April 2010. The Committee also has other oversight functions: under certain conditions, when a State Party has recognised its competence (as France has done), the Committee may receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention, and may carry out investigations and investigate claims between State Parties.
France has also signed the Optional Protocol to the Convention against Torture, which established the Sub-Committee on the Prevention of Torture (SPT), whose task is to carry out inspection visits, in conjunction with national prevention agencies, to all places of detention in the States Parties to the Protocol. The Protocol requires States Parties to set up a visiting body or bodies for the prevention of torture and abuse (known as the national preventive mechanism) within one year after the entry into force of this Convention for the State Party concerned. France has accordingly set up its national preventive mechanism in the form of a fully independent Controller-General for Places of Deprivation of Liberty, responsible for ensuring that the fundamental rights of detainees are respected. To date, 64 States have ratified the Protocol.
France is also party to the European Convention for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (ratified on 9 January 1989, came into force on 1 February 1989, 47 States Parties to the Convention) and its protocols. The Convention establishes a European Committee for the Prevention of Torture (CPT) responsible, in the same way as the SPT, for visiting and inspecting places of detention. The CPT’s last visit to France took place in December 2010.
France, in common with the European Union, supports the annual adoption by the United Nations General Assembly of a resolution on "torture and other cruel, inhuman or degrading treatment or punishment". This resolution reiterates the "absolute" prohibition on torture and encourages States Parties to the Optional Protocol to set up national preventive mechanisms against torture.
In addition to complying with these international and European instruments, France campaigns actively for the universalisation of the Convention for the Protection of All Persons from Enforced Disappearance, a key element in the prevention of torture.
The agreements described above are by no means the only legal instruments available for combating torture: others include the International Covenant on Civil and Political Rights, conventions on the elimination of all forms of discrimination (racial, against women), etc.
France’s concrete actions
In addition to this standard-setting work, France is also involved in a number of different concrete initiatives:
France supports the work and the action of the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.
France ensures implementation of the European Guidelines on Torture adopted in 2001. These guidelines provide information on the operational instruments (report, evaluation, political dialogue, demarche, declaration) to be used by member States in their dealings with non-EU countries, with the aim of eliminating torture and ill treatment throughout the world. France also supports the introduction of human rights promotion and protection strategies appropriate to the situation of individual countries and ensures, wherever necessary, that combating torture forms part of such strategies.
in application of the guidelines, France engages with its European partners, whenever it deems appropriate, in demarches on behalf of individual cases of torture or ill-treatment. Our Embassies outside the European Union have been instructed to work with our European partners to develop strategies for combating torture that are tailored specifically to the local context. Specific actions include inviting the country in question to ratify the Convention against Torture and its Optional Protocol, encouraging countries to agree to visits by the United Nations Special Rapporteur on Torture or setting up independent and effective national mechanisms for the prevention of torture in States that have ratified the Optional Protocol to the Convention.
Through its Permanent Mission to the United Nations in New York, France also joined forces with the Office of the High Commissioner for Human Rights and the Association for the Prevention of Torture to organise an event celebrating the 10th anniversary of the adoption by the United Nations General Assembly of the Optional Protocol to the Convention against Torture.
Every years, thousands of people are arbitrarily detained for having exercised one of their fundamental human rights such as freedom of opinion or expression or the right to leave one’s native country, or because they are imprisoned without trial by an independent judicial authority, to cite but a few instances.
The United Nations Working Group on Arbitrary Detention
France was instrumental in the creation of the Working Group on Arbitrary Detention, a group of independent experts established on 5 March 1991 by resolution 1991/42of the former Commission on Human Rights, and chaired the Working Group from 1991 to 1997. The Working Group meets three times a year and carries out field missions to investigate allegations of arbitrary detention, in particular cases brought to its attention under the "urgent action procedure".
The United Nations Working Group on Arbitrary Detention, which France has supported since its inception, celebrated its 20th anniversary in 2011. To mark the occasion, France together with Norway and the French National Advisory Commission on Human Rights (CNCDH) organised a commemorative event, attended by many leading figures, to pay tribute to the achievements of the Working Group and France’s contribution to its creation. France also works through the United Nations to advance the fight against arbitrary detention, regularly presenting resolutions to the Human Rights Council.
Updated on : 01.03.13
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