Enforced disappearance, torture and arbitrary detention

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France and the fight against enforced disappearance, torture and arbitrary detention

Fighting enforced disappearance

Overview and context

Enforced disappearance is considered to be abduction or any other form of deprivation of liberty 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, which place such a person outside the protection of the law. The perpetrators of these disappearances are acting on behalf of or with the support of the State. These unsolved and unpunished disappearances are serious human rights abuses which must be fought.

Since its creation in 1980, the United Nations Working Group on Enforced or Involuntary Disappearances, whose work complements that of the Committee on Enforced Disappearances, has handled 55,000 cases involving 105 States. The United Nations reports have revealed 200,000 enforced disappearances in North Korea and have condemned this widespread practice in Syria since 2011.

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Mur des disparus à Pristina,
Kosovo (AFP PHOTO/ARMEND NIMANI)

For a long time, the lack of a specific mechanism to protect victims encouraged impunity for the perpetrators of such practices. While the Geneva conventions and their protocols govern enforced disappearances in wartime, these international humanitarian law provisions neither concern unconventional conflicts nor peacetime situations. The common and systematic practice of enforced disappearances in Latin America in the 1970s led the United Nations to draw up a legal instrument on this issue.

Significant progress has thus been made since 20 December 1978, the date on which the United Nations General Assembly, at the initiative of France, adopted the first resolution on disappeared persons:

  • In 1980, a Working Group on Enforced or Involuntary Disappearances, whose work showed the scale and seriousness of the phenomenon and helped mobilize the international community around a new international instrument, was created. Within this framework, resolutions on enforced disappearance and arbitrary detention were adopted at the Human Rights Council and the United Nations General Assembly;
  • Adoption in 1992 of the Declaration on the Protection of All Persons from Enforced Disappearance by the United Nations General Assembly;
  • Classifying enforced disappearances as crimes against humanity, when committed as part of a widespread or systematic attack directed against any civilian population by the Rome Statute of the International Criminal Court (ICC) in 1998 (Article 7). Enforced disappearances may thus fall within the jurisdiction of the ICC;
  • Entry into force on 23 December 2010 of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) jointly led by France and Argentina, adopted on 20 December 2006 by the United Nations General Assembly and signed in Paris on 6 February 2007;
  • Existence of a Working Group on Enforced or Involuntary Disappearances since 1980 with a mandate to help the family members of missing persons find out what has happened to the person and where they are. In this role, the Working Group serves as a channel of communication between family members and the Governments concerned.

Conventions protecting against enforced disappearance

The International Convention for the Protection of All Persons from Enforced Disappearance entered into force on 23 December 2010. As of May 2020, it had 98 States and 62 States Parties. It was most recently ratified by Dominica, Fiji, Norway (2019) and The Gambia (2018). Between 2013 and 2019, 25 States ratified the Convention, mainly thanks to the joint campaign between Argentina and France for its universal ratification.

The Convention is a genuine instrument for combatting enforced disappearances. As such, it provides a legal definition of enforced disappearance which it considers to be a crime both in times of peace and war, thus filling the legal loophole which existed. No circumstances whatsoever may be invoked to justify enforced disappearances.

The Convention addresses both individual cases of enforced disappearance and systematic practices of enforced disappearance thanks to proactive investigation and response measures. It thus criminalizes the act of a State conducting or organizing the enforced disappearance of a person, with no information ever on what happened. It classifies the widespread or systematic practice of enforced disappearance as a “crime against humanity”. It prohibits secret places of detention and strengthens the procedural safeguards surrounding detention. It gives families and relatives a right to know the truth about the fate of victims of enforced disappearances. The Convention also highlights the rights of persons to know the fate of their missing family and friends as well as victims’ rights to compensation. Furthermore, it requires States to pay special attention to missing children.

It is essential to raise further awareness of this innovative legal instrument, so that it is equal to the challenge posed by enforced disappearances around the world. The preventive aspect of the Convention which sets up monitoring and early warning mechanisms must be highlighted, as must its role in consolidating the rule of law and fighting impunity in post-crisis situations.

Finally, the ICPPED set up an independent monitoring body: the Committee on Enforced Disappearances. A Conference of the States Parties to the International Convention for the Protection of All Persons from Enforced Disappearance was held in Geneva on 19 December 2016, co-chaired by France and Argentina.

France welcomes the decision taken at the conference that the Committee on Enforced Disappearances should remain the body responsible for monitoring implementation of the Convention.

-* More information on the first Conference of the States Parties to the International Convention for the Protection of All Persons from Enforced Disappearance, held on 19 December 2016 at the Palace of Nations in Geneva.

The Committee on Enforced Disappearances helps fulfil the aspirations of family members of missing persons to obtain compensation. The Committee has made an undeniable contribution to the success achieved since the entry into force of the Convention, raising awareness of the prevention and protection tools which it contains and ensuring they are effectively implemented.

An independent French expert (Mr Olivier de Frouville) is a Member of the Committee on Enforced Disappearances.

30 August is the International Day of the Victims of Enforced Disappearances.

Long-term commitment from France

For many years, France has been fully involved in fighting enforced disappearance:

  • It initiated Resolution 33/173 of 20 December 1978 and chaired negotiations on the Declaration on the Protection of All Persons from Enforced Disappearance of 18 December 1992, which was adopted by the General Assembly of the United Nations (UNGA);
  • The draft Convention on Enforced Disappearance was prepared by a Sub-Committee on Human Rights which completed its work in 1998, with French expert Louis Joinet drawing up a draft binding instrument on the issue;
  • France chaired the working group created by the United Nations Commission on Human Rights, which was responsible for drawing up a draft convention instrument for the protection of all persons from enforced disappearance. In line with the related UNGA resolution and in recognition of the major role played by France regarding this issue for over 25 years, exceptionally for a UN convention, the signing ceremony was held in Paris;
  • Along with Argentina and in accordance with Article 27 of the Convention, France chaired and played an active role in organizing the Conference of the States Parties to the International Convention for the Protection of All Persons from Enforced Disappearance, which took place in Geneva on 19 December 2016. At the conference, the Parties decided to maintain the Committee on Enforced Disappearances.

France ratified the International Convention for the Protection of All Persons from Enforced Disappearance on 23 September 2008. France also recognized the competence of the Committee on Enforced Disappearances in its declaration of 9 December 2008, as set out in Article 31 of the Convention.

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Photos de personnes disparues pendant
la dictature en Argentine (Daniel Garcia/AFP)

On the whole, national legislation complies with the provisions of the Convention.
France and Argentina continue to conduct joint campaigns for universal ratification of the Convention.

Fighting torture and other cruel, inhuman or degrading treatment or punishment

Torture and ill-treatment are widespread practices in many countries. It is even more difficult to fight torture as it often occurs in secret, hard-to-access detention centres. The backdrop of global counter-terrorism action following the 9-11 attacks strengthened this trend, as States have not hesitated to use counter-terrorism as an excuse for practising torture.

Among the torture victims are political opponents, human rights defenders, members of religious minorities, LGBTI persons and terrorism suspects. Even common law detainees can also face torture in countries with little regard for human rights, especially when they are particularly vulnerable due to their gender, age, socio-economic category or legal status, such as refugees.
There are many causes for torture and ill-treatment: beyond a possible desire to take repressive measures, torture is often linked to a chronic lack of financial and technical resources, poor law enforcement training, as well as a climate of impunity which can exist in certain countries and which, in the absence of legal proceedings or the criminalization of acts of torture of ill-treatment, can only encourage the use of such measures.

France’s commitments

France is involved at several levels internationally in fighting against torture and other cruel, inhuman or degrading treatment or punishment.

It ratified the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which currently has 169 States Parties. This Convention places victims at the heart of its standard-setting mechanism, first by fighting impunity for the perpetrators of such acts by authorizing the arrest of torturers solely for the fact of being present in the territory of a State Party, and then by making torture a crime against humanity when used in a widespread and systematic fashion.

This Convention also created a Committee Against Torture, to which States must report every four years. France last submitted its report in 2015 and was reviewed by the Committee on 19-20 April 2016. In accordance with its obligations, France submitted its eighth periodic report to the Committee in May 2020. The committee also has other monitoring functions: it can, under certain circumstances, when the State has recognized its competence (as is the case with France), consider individual complaints from individuals claiming that their rights under the Convention have been violated, undertake inquiries and consider inter-state complaints.

France has also signed the Optional Protocol to the Convention, which created the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“SPT”), which is responsible for inspecting, in collaboration with National Preventive Mechanisms, all places where persons may be deprived of their liberty in the States Parties to the Protocol. France urges States to establish national mechanisms to prevent torture and ill-treatment within one year of the entry into force of the convention for the State Party. In 2008, France set up its national prevention mechanism in the form of the Controller-General for Places of Deprivation of Liberty, whose mission is to independently ensure full compliance with the fundamental rights of detainees. To date, there are 90 States Parties to this Protocol.

French independent experts sit on the Committee Against Torture (Sébastien Touzé, rapporteur) and the Subcommittee on Prevention of Torture (Catherine Paulet).

France is also party to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ratified on 9 January 1989 and entered into force on 1 February 1989, 47 States Parties to the Convention) and its Protocols (which since their entry into force have been an integral part of the Convention). This Convention also created a European Committee for the Prevention of Torture which, like the SPT, undertakes visits to places where persons may be deprived of their liberty.

The Committee’s last visit to France was in December 2019.

Every two years, along with the European Union, France supports the adoption of a resolution against “Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” by the General Assembly of the United Nations. This resolution recalls the “absolute” prohibition of torture and encourages States Parties to the Optional Protocol to establish national prevention mechanisms against torture.
In addition to these international and European texts, France is conducting an active campaign for the universalization of the International Convention for the Protection of All Persons from Enforced Disappearance, which is an important part of torture prevention.

The standard-setting mechanism for combatting torture is not restricted to the abovementioned agreements but can be extended to other texts: the International Covenant on Civil and Political Rights, conventions on the elimination of all forms of discrimination (racial, against women), the Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe), etc.
France’s concrete action

In addition to this normative work, France is carrying out various actions:

  • It supports the work and the action of the UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
  • France ensures the implementation of the EU Guidelines on Torture, which were drawn up in 2001 and last updated in 2019. These guidelines provide information on operational tools (reporting, evaluation, political dialogue, démarches, statements) to be used by Member States in their relations with third countries in order to eradicate torture and ill-treatment in all parts of the world. It also supports implementing country-specific strategies to uphold and defend human rights and where necessary ensures that they include the fight against torture
  • In line with these guidelines, where it deems appropriate, France is undertaking démarches with its European partners to address individual cases of torture or ill-treatment. France’s non-EU embassies have been instructed to work with their European partners to develop strategies to fight torture which are tailored to the local context. Specific actions are being taken such as requests to ratify the Convention against Torture and its Optional Protocol, encouragement to accept visits from the UN Special Rapporteur on Torture or the establishment of effective, independent national torture-prevention mechanisms in States which have ratified the Optional Protocol to the Convention
  • France is a contributor to United Nations Voluntary Fund for Victims of Torture (€80,000 in 2019)

Fighting arbitrary detention

Article 9 of the Universal Declaration of Human Rights sets out that “No one shall be subjected to arbitrary arrest, detention or exile.” In itself, detention does not constitute a violation of a person’s fundamental rights, which is why international human rights law has gradually striven to set limits beyond which detention becomes arbitrary, whether it be administrative or judicial.

And yet each year around the world, people are arbitrarily detained with no legal justification. They are sometimes imprisoned for wanting to exercise one of their fundamental rights such as the freedom of opinion and expression, or the right to leave one’s own country.

In order to fight this practice which runs counter to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (Articles 9 and 11) and the European Convention on Human Rights (Article 5), standards have been drawn up.

The United Nations Working Group on Arbitrary Detention

Established on 5 March 1991 by Resolution 1991/42 of the Commission on Human Rights on the initiative of France, which chaired it from 1991 to 1997, the United Nations Working Group on Arbitrary Detention is made up of independent experts. It convenes three times per year, presents an annual report, investigates cases of arbitrary detention, examines allegations of arbitrary detention submitted to its attention and conducts field missions. As part of its investigations, it can send “urgent appeals” to concerned Governments to bring individual cases to their attention.

France’s action

The United Nations Working Group on Arbitrary Detention, which France has supported since its creation, celebrated its 25th anniversary in 2016. To mark the occasion, on 28 November 2016, with the support of France, the Office of the High Commissioner for Human Rights (OHCHR) organized a one-day event to commemorate the 25th anniversary of the Working Group.

Furthermore, France is promoting the fight against arbitrary detention at the United Nations through resolutions which it regularly submits to the Human Rights Council. At the initiative of France, a resolution seeking to renew the mandate of the United Nations Working Group on Arbitrary Detention was adopted at the 42nd session of the Human Rights Council in October 2019. This resolution ensured that the working group’s mandate was renewed, its work was recognized, and, where appropriate, allowed it to submit a thematic report and call on States to cooperate with it.

Updated: June 2020