UN Committee against Enforced Disappearances

Committee Against Disappearances ; Committee on Enforced Disappearances
Organization type	Committee
Abbreviation	IBD
management	Suela JANINA
Founded	23 December 2010
Headquarters	Geneva , Switzerland
Upper organization	UN High Commissioner for Human Rights , UNHCHR

The Committee Against Disappearances, CED (Engl. Committee on Enforced Disappearances ) is a set up by the UN monitoring body that the implementation and compliance with the International Convention for the Protection of All Persons from Enforced Disappearance ICPED, (Engl. International Convention for the Protection from Enforced Disappearance ) monitored by the contracting states. It has an advisory role and can make recommendations to the contracting states on how they can improve the implementation of the treaty.

The creation of the committee and its tasks are laid down in Part 2 ICPED (Art. 26 to 36 ICPED). It consists of 10 experts and meets twice a year in Geneva.

There is a risk of confusion with the existing working group on forced and involuntary disappearance , GTDFI ( Working Group on Enforced or Involuntary Disappearances , WGEID), which was created on February 29, 1980 by the then Human Rights Commission. It is subordinate to the Human Rights Council, which regularly extends the mandate. The investigations by the GTDFI are independent of the ratification of the ICPED.

tasks and activities

The committee's activities relate only to states that have ratified the ICPED Agreement (Art. 38 ICPED); it also depends on the declarations and reservations the states made when the treaty was concluded.

Its main activities consist in examining state reports (Art. 29 ICPED), processing search queries about disappeared persons (Art. 30 ICPED), examining individual complaints (Art. 31 ICPED), examining state complaints (Art. 32 ICPED) and investigations in the case of serious ones Violations of the agreement (Art. 33 ICPED). Individual and state complaints are only admissible if the state expressly agreed to this when the contract was concluded. The treaty does not provide for the express consent of the states for search queries and investigations in the event of serious violations.

The Committee works with all appropriate organs, agencies, specialized agencies and funds of the United Nations. To this end, the committee also consults with the other UN treaty bodies , in particular with the CCPR committee responsible for the International Covenant on Civil and Political Rights , in order to ensure uniform statements and recommendations (Art. 28 ICPED).

The ICEPD contract basis

The Convention on the Protection from Enforced Disappearance is an international treaty created by the UN, which came into force on December 23, 2010. All member states of the UN can accede to this convention and thereby contractually undertake to comply with the provisions of the ICEPD, in particular to refrain from the disappearance of people, to bring the guilty to account and to grant all people on their territory this protection and the rights listed in the convention.

The phenomenon of enforced disappearance is a global reality: Typically, a dissident is arrested by state organs or groups close to the state and taken to a secret prison ( black sites ) or murdered and the body is disposed of. Although there is evidence or witnesses can confirm what happened, everything is denied by the state actors. No information is therefore available on the fate of the kidnapped person; in a sense it "disappears" and is thereby deprived of all rights. Neither he nor his relatives have the opportunity to take legal action against it. That is why this convention was created to give them a remedy.

Definition of enforced disappearance in the ICPED

For the purposes of the Convention, enforced disappearance means arrest, deprivation of liberty, kidnapping or any other form of deprivation of liberty by government officials or by organizations acting with the authorization, support or tolerance of the state, followed by a refusal to recognize such deprivation of liberty, or the concealment of the fate or whereabouts of the disappeared, which removes them from the protection of the law (Art. 2 ICPED). If other actors such as paramilitary organizations, drug cartels, the mafia or similar make someone disappear, the state is obliged to investigate and bring those responsible to justice (Art. 3 ICPED). Other missing or missing persons are excluded from the Convention.

Ratification status

ICPED agreement	Germany Germany	Liechtenstein Liechtenstein	Austria Austria	Switzerland Switzerland
ratification	September 24, 2009	------	June 7, 2012	2nd December 2016
Individual complaints	Yes	------	Yes	Yes
State complaints	Yes	------	Yes	Yes
International Court of Justice	Yes	------	Yes	Yes

Of 59 states, 22 agree to individual complaints and 23 to state complaints. Germany made a reservation to Art. 16 et seq. ICPED and 4 states expressly rejected the International Court of Justice (Art. 42 ICPED) - as of February 2019.

Rules of Procedure

In order to carry out its tasks as defined in Art. 26 ff. ICPED, the committee drew up rules of procedure . It consists of 3 parts, Part I. General Provisions , Part II. Tasks of the Committee and Part III Interpretation and Amendments , it contains 105 provisions referred to as Rule and is divided into 26 chapters.

The relevant chapters are:

Cape. 17 reports of the contracting states according to Art. 29 ICPED
Cape. 20 Urgent procedure to search for and find those who have disappeared in accordance with Art. 30 ICPED
Cape. 21 Receipt and examination of individual complaints according to Art. 31 ICPED
Cape. 22 State complaints according to Art. 32 ICPED
Cape. 23 Audit visits by the committee pursuant to Art. 33 ICPED
Cape. 24 Systematic Enforced Disappearance Procedure under Article 34 ICPED

Examination of the state reports

This procedure is contained in Art. 29 ICPED and Chapter 17 of the Rules of Procedure, according to which the states submit a report to the CED on the domestic implementation of the Convention within two years of the conclusion of the contract, in which they explain how they implement the treaty. If a submitted report contains insufficient information, the CED can request additional information (Art. 29 Paragraph 4 ICPED, Rule 48 ff. Rules of Procedure). Periodic reports, as in the other UN human rights treaties, are not provided for in the ICPED.

At the state reporting procedure also can non-governmental organizations (NGOs) and national human rights organizations (NHRIs) actively participate and submit parallel reports to the state reports, show an inadequate implementation of ICPED by States Parties. In doing so, gaps or errors in the state report can be clarified and deficits pointed out. Such parallel reports can be very informative for the committee (Rule 52 Rules of Procedure).

The committee draws up a list of issues (LOIs ) for reviewing the report . He then examines the state reports at a public hearing at which they can comment on the questions of the committee. He tries to determine whether the contracting state implemented the ICPED correctly and how it could remedy existing deficiencies. For the participation of third parties at the public hearing admission is required (Engl. Accreditation ).

If the committee finds deficiencies in the implementation of the contract, it can make suggestions and make recommendations on how to remedy the deficiencies. These are referred to as " Concluding Observations " (Art. 29 Para. 3 ICPED, Rule 53 Rules of Procedure).

These recommendations of the committee are not legally binding. Implementation cannot be enforced, only a follow-up procedure is provided (Rule 54 Rules of Procedure) in which a CED reporter reviews the implementation of the recommendations by the state. There are no sanctions against the state concerned.

Since some states do not submit reports or submit their reports late, the High Commissioner for Human Rights (UNHCHR) compiled a list of all contracting states in which the states are listed that submit their reports on time (e.g. Italy, Switzerland, etc.) and the States that are partially in default (e.g. Germany, Liechtenstein, Austria, the Vatican etc.).

Proceedings in the case of missing persons

This procedure ( urgent actions ) is described in Art. 30 ICPED and Chapter 20 of the Rules of Procedure and is applicable in all states that have ratified the agreement; an express consent to this procedure was not required. If a state party is suspected of having made someone disappear, a search request can be made to the CED Committee. The committee first checks whether the requirements for a search procedure are met, the request is admissible and whether the case of enforced disappearance by the state is sufficiently documented and proven (Art. 30 Para. 2 ICPED, Rule 62 Rules of Procedure).

He then requests the state party concerned to carry out investigations in order to clarify the fate or whereabouts of the person who has disappeared and to provide him with information about the person sought within a period set by him. He can also instruct the state to take immediate action to track down the disappeared person. The committee will continue its efforts as long as the fate of the missing person has not been clarified and will inform the applicants of the results (Art. 30 Para. 4 ICPED).

In cases of intimidation or reprisals against relatives of the disappeared person, the committee calls on the competent authorities of the state party to take protective measures for those affected (Rule 63 Rules of Procedure).

He keeps a list of the searches carried out; the searches that the committee considers to be inadmissible are not included in the list. If the wanted person is found dead, the case is closed for the committee. In some cases, the committee ordered protective measures for the relatives and survivors of the disappeared person.

Individual complaints

The individual complaints are euphemistically referred to as notifications , the procedure is listed in Art. 31 ICPED and Chapter 21 Rules of Procedure, the formal requirements for individual complaints are listed in Art. 31 Paragraph 2 ICPED and Rule 65 Rules of Procedure. The committee created a corresponding complaint form ( model complaint form ) with legal instructions.

The prerequisite for an individual complaint procedure against a state is that it explicitly recognized the competence of the Committee for Individual Complaints when the contract was concluded (Art. 31 Para. 1 ICPED). The committee may not receive complaints against a state that has not made such a declaration. 22 of 59 contracting states approved the individual complaint procedure (as of February 2019).

The complaint must be in writing, must not be anonymous and must be written in one of the working languages of the committee; for this the national legal process must be unsuccessful. Only then can a complaint be submitted to the committee. There is no time limit for a complaint, but a complaint is usually no longer accepted after five years. The complaint can be rejected on the grounds that the committee is not competent because the alleged violation (e.g. enforced disappearance by third parties) is not included in the ICPED ( ratione materiae ) or it would constitute an abuse of the right to complain. The same complaint may not be submitted to another international body (e.g. the ECHR , another UN treaty body , etc.).

The complaints submitted to the UN are first formally examined by the Secretariat of the High Commissioner for Human Rights (UNHCHR) (Rule 65 Rules of Procedure). The complaint is then either rejected or forwarded to the committee, which in turn first examines the substantive admissibility of the complaint (Art. 31 Para. 2 ICPED).

If the complaint has been rejected by the secretariat, the complainant will be informed of this in a standard letter. The reason given is usually insufficient justification , although this is not provided at all (Rule 65 Rules of Procedure) and information would have to be obtained instead (Rule 67 of Rules of Procedure). The secretariat only registers those complaints that it admitted and forwarded to the committee (Rule 67 Rules of Procedure). No statistics are kept on the number of complaints already rejected by the Secretariat.

If the complaint has been accepted, it is forwarded to the state concerned for a statement, whereupon the state can raise the objection of inadmissibility (Art. 31 Para. 3 ICPED). The committee tries to reach an amicable agreement and if the contracting state agrees, this is recorded in a decision, which settles the case (Rule 78 Rules of Procedure).

Only afterwards does the committee deal with the content of the complaint (Rule 72 ff. Rules of Procedure). After the examination, the committee communicates its opinion to the parties concerned. If he declared the complaint to be inadmissible, he justified his decision - in contrast to the secretariat. If the committee found a breach of contract, it issues proposals and recommendations to the state on how to remedy this (Art. 31 Para. 5 ICPED, Rule 75 Rules of Procedure). The state party concerned is then asked to inform the committee of the implementation of the proposals and recommendations. The committee's recommendations are not legally binding, their implementation cannot be enforced, only a follow-up procedure is provided (Art. 79 Rules of Procedure) in which a rapporteur checks the implementation by the state concerned. There are no sanctions, it is only mentioned that the committee can take measures without specifying them. In contrast to state complaints, it is not possible to proceed to the International Court of Justice .

Precautionary measures

When submitting an individual complaint, precautionary measures ( interim measures ) can be requested at the same time (Rule 70 Rules of Procedure) if there is a threat of irreparable damage. Such requests must be marked with Urgent Interim measures as soon as possible so that the Secretariat has enough time to examine the request and - if the complaint was not rejected - to order such measures, if necessary.

The committee can also order such measures of its own accord (Art. 31 Para. 4 ICPED), but it does not constitute a decision on the admissibility of the complaint or the establishment of a breach of contract by the state.

Complaints to the committee and the ECHR

A complaint, for example because of a violation of the ban on deportation according to Art. 16 ICPED, Art. 3 CAT, Art. 7 ICCPR, Art. 3 ECHR may not be submitted to the CED Committee, the ECHR or another UN treaty body at the same time is the same fact. However, it is permissible to lodge a complaint with the committee for a violation of Art. 16 ICPED ban on deportation and a complaint with the ECHR for a violation of Art. 12 ECHR right to marry , as there is no overlap but rather different breaches of contract by the same state.

There are complaints that were first submitted to the ECHR, but were not accepted by it, with the standard reasoning: " The complaint has no appearance of a violation of the rights and freedoms guaranteed in the Convention (ECHR) or its additional protocols ". The complaint, which was then submitted to a UN committee, was then rejected on the grounds that it had allegedly been examined by the ECHR, although the ECHR did not examine the substance of the complaint, but did not accept it.

In accordance with decision no. 577/2013 of the CAT committee of February 9, 2016, within the meaning of NB c. Russia for torture. At the same time, the complainant had submitted an identical complaint to the ECHR (No. 33772/13), which is why the CAT committee rejected the complaint (RZ 8.2). In the judgment database of the ECHR HUDOC , however, there is no judgment with the No. 33772/13, as the complaint was rejected by the ECHR office and then struck from the register - and thus not examined by the ECHR.

In contrast to the UN committees, the ECHR rejects individual complaints, which essentially correspond to a complaint previously examined by the ECHR (Art. 35 (2) lit b ECHR). The UN committees accept such identical complaints until states change their laws and jurisdiction.

State complaints

According to Article 32 of the ICPED, the Committee is empowered to investigate state complaints if a state party claims that another state party is not complying with its obligations under this convention. The prerequisite for this is that both states explicitly recognized the competence of the committee when they ratified the treaty. 23 of 59 contracting states agreed to the state complaints procedure (as of February 2019).

This procedure is listed in Chapter 22 of the Rules of Procedure. In contrast to individual complaints, there are no further formal requirements for state complaints (cf. Art. 31 Para. 2 ICPED Individual Complaints, Rule 72 of the Ordinance). The secretariat may not declare state complaints inadmissible, but must forward them to the committee immediately (Rule 83 Rules of Procedure).

The task of the committee is to settle the dispute (Rule 85 Rules of Procedure). If no amicable agreement can be reached, the parties can apply to the International Court of Justice within six months , provided neither of the two states made a reservation in this regard when ratifying the treaty (Art. 42 ICPED). When the contract was signed, 4 states expressly rejected the jurisdiction of the International Court of Justice (as of February 2019).

Investigation procedure

If the committee receives reliable information that a contracting state has seriously violated the provisions of the ICPED, it can conduct inquiries in the state concerned. In contrast to the other committees, it does not require the consent of the contracting state for this; the only formal requirement is that it is a contracting state.

This procedure is based on Art 33 ICPED and Chap. 23, 24 Rules of Procedure and the active participation of the contracting state concerned is sought. First, the information received is checked (Rule 91 et seq. Rules of Procedure), the committee can also carry out investigations on site in the affected state, provided the state agrees. If information persons in the country concerned are threatened or intimidated, the committee can demand protective measures from the state for the persons concerned (rule 99 Rules of Procedure).

After the investigation process has been completed, the committee draws up a report and sends it to the state together with recommendations, whereupon it is expected that the state will comment on the investigation results and state what measures it has taken to remedy the situation (Rule 97 f. Rules of Procedure, Rule 103 Rules of Procedure).

However, if the Committee finds that there has been widespread or systematic disappearance in that State, it may bring the matter to the attention of the United Nations General Assembly as an urgent matter. This then decides on how to proceed (Art. 34 ICPED). The systematic disappearance of people is according to Art. 7 Para. 1 lit i of the Rome Statute, a crime against humanity and the International Criminal Court in The Hague is responsible for this (Art. 5 ICPED).

General remarks

The interpretation and clarification of certain provisions in the ICPED, the Committee published General remarks (English. General comments ). They are intended to dispel misunderstandings and to assist the contracting states in fulfilling their contractual obligations (Rule 56 of the Rules of Procedure).

criticism

It must be proven to the state that someone disappeared. When the Stasi kidnapped people from the FRG to the GDR and had them disappear, they did not wear uniforms so that nothing could be proven to them. In the case of a complaint to the CED committee, however, this must be proven to the state, and the state can claim that the police wrote the missing person to be wanted.

The prerequisite for an individual complaint is that the national legal process has been unsuccessful. However, this implicitly presupposes a functioning constitutional state with a separation of powers and an independent judiciary, whereby the individual complaint is a logical circular Petitio principii . In states where the government appoints its own party members as judges , this is almost hopeless, as such complaints are not examined materially by the government interest representatives appointed as judges for political reasons. If the last domestic instance let the complaint come to nothing by basing the complaint on other facts, the complaint can be rejected by the secretariat on the grounds that it is not responsible (Rule 65 (3) (c) of the Rules of Procedure).

literature

Rainer Huhle The Disappearance of Persons - An Initial Assessment of the Implementation of the UN Convention , 2015, pdf.
Federal Foreign Office ABC of the United Nations , human rights pacts and their review bodies p. 155 ff., May 2017, 9th edition, pdf, 308 p.

Manfred Nowak: Introduction to the international human rights system. Neuer Wissenschaftlicher Verlag, Vienna 2002, ISBN 3-7083-0080-7 .

UNHCHR: The United Nations Human Rights Treaty System Fact Sheet No. 30 / Rev.1; New York and Geneva, 2012 English, pdf. 74 pp.

UNHCHR: A Handbook for Civil Society Working with the United Nations Human Rights Program, New York and Geneva 2008, engl., Pdf. 206 pp.

UNHCHR: Handbook for Human Rights Treaty Body Members New York and Geneva 2015, engl., Pdf. 98 pp.

Reports of the state reports

Web links

Committee on Enforced Disappearances Website of the CED Committee (English)

Technical Committee, Individual and State Complaints Procedure , in: Convention against Enforced Disappearance , publisher: German Institute for Human Rights

Committee on Enforced Disappearances , Ed .: Praetor Intermedia UG

International Convention for the Protection of All Persons from Enforced Disappearance (ICPED), in: Systematic Collection of Swiss Federal Law

Ratification status of the ICEPD with the reservations and declarations of the states to the treaty, in: Treaty collection of the UN

Vienna Convention on the Law of Treaties (WVK) in: Liechtenstein Collection of Laws (LILEX)

Rome Statute of the International Criminal Court in: Liechtenstein Collection of Laws (LILEX)

Sri Lanka: Security Forces Disappearances A National Crisis , by Human Rights Watch

From the work of the UN Committee Against Disappearances of violent disappearances

Egypt: New Forced Disappearances from Forced Disappearances

Individual evidence

↑ The abbreviation CED is used in all official languages of the committee, including Arabic and Chinese, also used by the German Foreign Office.

↑ On December 23, 2010 the contract came into force, see Art. 39 ICPED. The first election took place after 6 months, Art. 26 Para. 3 ICPED

↑ ^a ^b ^c ^d ^e Committee on Enforced Disappearances (CED). CED Committee website. Retrieved February 24, 2019 .

↑ Human Rights Bodies. UN human rights organs. Published by: UN High Commissioner for Human Rights UNHCHR, accessed on February 21, 2019 (eng).

↑ ^a ^b ^c ^d ^e ^f ^g ^h ⁱ International Convention for the Protection of All Persons from Enforced Disappearance. In: Systematic collection of Swiss federal law . Retrieved February 25, 2019 .

↑ Technical Committee (Treaty Body). In: Convention against Enforced Disappearances. Published by: German Institute for Human Rights , accessed on February 25, 2019 .

↑ ^a ^b Committee on Enforced Disappearances. Published by Praetor Intermedia UG , accessed on February 25, 2019 .

^ Members of the Committee on Enforced Disappearances. The experts of the CED committee. Ed: CED , accessed on February 25, 2019 (English).

^ Introduction of the Committee. Ed: CED , accessed on February 25, 2019 (English).

^ The Working group on Enforced or Involuntary Disappearances (WGEID). Ed: UNHCHR , accessed on February 27, 2019 (English).

↑ How to use the WGEID. (PDF) Ed .: UNHCHR , accessed on February 27, 2019 (English).

↑ UN Human Rights Commission. Published by Humanrights.ch , accessed on February 27, 2019 .

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↑ Nicaragua shows UN working group. Published by: Deutsche Welle , accessed on February 27, 2019 .

^ WGEID's Procedures. Ed: UNHCHR , accessed on February 27, 2019 (English).

^ The Working Group and the Committee on Enforced Disappearance. Ed: UNHCHR , accessed on February 27, 2019 (English).

↑ Working methods. How the CED Committee works. Retrieved February 21, 2019 .

↑ The state is only obliged under international law to comply with the treaty after ratification. In Germany, the dualistic system applies, in which the contract must first be transformed into national law before it becomes justiciable. In Liechtenstein, Austria and Switzerland the one-tier system applies, according to which the treaty becomes applicable immediately upon ratification.

↑ According to Art. 2 VVK, a “reservation” is a unilateral declaration made by a state when it joins a treaty, by means of which the state aims to exclude or change the legal effect of individual contractual provisions in application to this state

^ Vienna Convention on the Law of Treaties (VVK). In: Liechtenstein Collection of Laws (LILEX). Retrieved February 26, 2019 .

↑ ^a ^b ^c ^d ^e ^f ^g Status of Treaties. Ratification status, reservations and statements on the ICPED. In: Treaty collection of the UN . Retrieved February 19, 2019 .

^ Individual Communications. Individual complaints to a UN treaty body. Published by UNHCHR , accessed on February 19, 2019 .

^ State-to-state complaints. State complaints procedure. Published by UNHCHR , accessed on February 19, 2019 .

↑ Inquiries. Investigation procedure for systemic breaches of contract. Published by UNHCHR , accessed on February 19, 2019 .

↑ CPED at a glance. Published by Praetor Intermedia UG , accessed on February 27, 2019 .

↑ Definition of Enforced Disappearance. Published by Praetor Intermedia UG , accessed on February 27, 2019 .

↑ German declaration of reservation for ICPED. Published by Praetor Intermedia UG , accessed on February 25, 2019 .

↑ ^a ^b ^c ^d ^e ^f Rules of procedure - CED procedural rules. Version: CED / C / 1. Published by: CED , June 22, 2012, accessed on February 6, 2019 . download link CERD

↑ Reporting guidelines. State Reports Policy. In: CED / C / 2. Ed: CED , accessed on February 25, 2019 (English).

^ Information for Civil Society Organizations. Information for NGOs. Ed: CED , accessed on February 21, 2019 (English).

^ Document on relationship with NGOs. In: CED / C / 3. Ed: CED , accessed on February 25, 2019 (English).

^ Information for National Human Rights Institutions. Ed: CED , accessed on February 25, 2019 (English).

↑ Document on relationship with NHRIs. In: CED / C / 6. Ed: CED , accessed on February 25, 2019 (English).

↑ Admission to negotiations with the committee. Ed: CED , accessed on February 19, 2019 (English).

↑ ^a ^b Legal instruments. (PDF) In: ABC of Human Rights. Federal Department of Foreign Affairs, FDFA, p. 10 , accessed on February 19, 2019 .

↑ UN High Commissioner for Human Rights. Published by: German Institute for Human Rights , accessed on February 21, 2019 .

^ List of States parties without overdue reports - Late and non-reporting States. Published by UNHCHR , accessed on February 21, 2019 .

^ What are urgent actions. (PDF) What are urgent measures. Ed: CED , accessed on February 25, 2019 (English).

^ General Information and Model for submission. Information on urgent measures - The application form is attached. In: CED / C / 4 of April 28, 2014. Ed .: CED , accessed on February 25, 2019 (English).

↑ List of registered urgent actions. (Word) Directory of the search for the disappeared. Ed: CED , accessed on February 25, 2019 (English).

↑ Procedure under ICPED. Complaints procedure to the CED committee. Published by UNHCHR , accessed February 25, 2019 .

↑ Art. 31 ICEPD Model complaint form. (Word) Complaint form according to Art. 31 ICEPD. Ed: CED , accessed on February 25, 2019 (English).

↑ Model complaint form. Complaint form with legal information. In: CED / C / 5 of April 28, 2014. Ed .: CED , accessed on February 25, 2019 (English).