Human Rights Council Advisory Committee
17 January 2011
Discusses Best Practices in the Matter of Missing Persons
The Human Rights Council Advisory Committee this afternoon opened its sixth session, hearing statements from the President of the Human Rights Council and the Director of the Human Rights Council and Special Procedures Division of the Office of the High Commissioner for Human Rights. The Advisory Committee then discussed and adopted its agenda and programme of work for the current session and took up the third item on its agenda, namely requests addressed to the Advisory Committee stemming from the Human Rights Council resolutions: a study on the best practices in the matter of missing persons.
Sihasak Phuangketkeow, President of the Human Rights Council, highlighted the importance the Council attached to the Advisory Committee and the analysis work that it was carrying out. The Council should fully utilize the range of expertise that the Committee had to offer. He also strongly believed that the Council needed to strengthen its interaction with the Committee. The constructive interaction between the Committee and the Council had facilitated the work of the Council in many instances. He also highlighted the fact that the Committee had conducted extensive consultations which had led to the draft declaration on human rights training. Turning to the current review process of the Human Rights Council, the facilitators of the review process had held a number of consultations over the last months. It was hoped that the work of the review process working group would be concluded by the next Council session in March.
Bacre Waly Ndiaye, Director of the Human Rights Council and Special Procedures Division of the Office of the High Commissioner for Human Rights, said that the Advisory Committee, since its establishment in 2008, had undertaken important work, such as the development of the first draft of the United Nations declaration on human rights education and of the principles and guidelines on the elimination of discrimination against persons affected by leprosy. The work of the Advisory Committee on discrimination in the context of the right to food was also expected to reach its final stage at the present session. Touching upon the on-going review process of the Human Rights Council, he said that there was scope to adjust the relationship between the Council and the Advisory Committee by enabling the latter to report more frequently to the Council and by involving the Committee more closely into the Council’s activities, such as panels and briefings.
Also speaking this afternoon was Rosslyn Noonan of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights on the recently adopted final draft declaration on human rights education and training.
The Committee then took up the issue of missing persons, introduced by Committee Expert Latif Huseynov, who presented the report of the drafting group on missing persons. Committee Experts then discussed the draft document.
Also speaking this afternoon in the discussion on missing persons were Azerbaijan and Argentina.
As the Committee’s Rapporteur, Miguel d’Escoto Brockmann, was unfortunately not able to join the session due to health reasons, the Committee elected Jose Antonio Bengoa Cabello by consensus to carry out the functions of the Rapporteur for the current session.
At the beginning of this afternoon’s meeting, the Advisory Committee observed a minute of silence for all victims of human rights violations around the world.
The next meeting of the Advisory Committee will be on Tuesday, 18 January at 10 a.m., when it is scheduled to continue consideration of this agenda item and the discussion on missing persons, before taking up the progress report of the drafting group on the draft declaration on the promotion of the right of peoples to peace.
SIHASAK PHUANGKETKEOW, President of the Human Rights Council, said that it was a great pleasure to meet with the members of the Advisory Committee. He highlighted the importance the Council attached to the Advisory Committee and the analysis work that it was carrying out. The Council should fully utilize the range of expertise the Committee had to offer. He also strongly believed that the Council needed to strengthen its interaction with the Committee. The constructive interaction between the Committee and the Council had facilitated the work of the Council in many instances.
Mr. Phuangketkeow also highlighted the fact that the Committee had conducted extensive consultations which had led to the draft declaration on human rights training. The guidelines on leprosy, which had been developed with the background work done by the Committee, had been adopted by the Council last September. These were concrete examples of concrete achievements of norms and standards settings work between the Council and the Advisory Committee.
Turning to the work undertaken by the Council on thematic issues since the Committee’s last meeting, Mr. Phuangketkeow said that of particular note was a resolution on the right for everyone to the attainment of the highest possible level of health. The Council was also planning during its next sessions to hold thematic discussions on the rights of people of African descent, the rights of people with disabilities and of victims of terrorism.
Turning to the current review process of the Human Rights Council, all views expressed by States on the Council, including on the Advisory Committee, were available on compilations on the intranet. The facilitators of the review process had also held a number of consultations over the last months, said Mr. Phuangketkeow. A meeting had taken place last December in Bangkok during which they had had a brainstorming session among 61 Ambassadors based in Geneva. It was hoped that the work of the review process working group would be concluded by the next Council session in March. The review process was not a reform but a review. The work of the Council should go beyond the chambers of the United Nations and should have a real effect on the ground. The review process should also deal with how the Council dealt with emergency situations in a timely manner.
BACRE WALY NDIAYE, Director of the Human Rights Council and Special Procedures Division, Office of the High Commissioner for Human Rights, said that the Advisory Committee, since its establishment in 2008, had undertaken important work, such as the development of the first draft of the United Nations declaration on human rights education and of the principles and guidelines on the elimination of discrimination against persons affected by leprosy. Human rights education contributed to the long-term prevention of human rights abuses and conflicts. The Office of the High Commissioner for Human Rights was already engaged in providing assistance to the implementation of the second phase of the World Programme for Human Rights Education.
The recent action by the Human Rights Council and the General Assembly on the Principles and Guidelines on the elimination of leprosy-related discrimination developed by the Committee was an important acknowledgement of the disturbing persistence of discriminatory practices, said Mr. Ndiaye. It was important to reiterate the need to give greater priority in the international agenda to the range of neglected diseases and to the development of integrated strategies addressing discrimination against those affected by them.
The work of the Advisory Committee on discrimination in the context of the right to food was also expected to reach its final stage at the present session, said Mr. Ndiaye. Some of the recent reports of the Special Rapporteur on the right to food might be of relevance to the Committee in this regard. Concerning the issue of missing persons, it was important to recall the recent deliberations by the General Assembly. In a resolution adopted last December, the General Assembly called upon States to take all appropriate measures to prevent persons from going missing.
With regard to the elaboration of a draft declaration on the right of peoples and individuals to international solidarity, consultations were underway with the Independent Expert, said Mr. Ndiaye.
Touching upon the on-going review process of the Human Rights Council, Mr. Ndiaye said that there was scope to adjust the relationship between the Council and the Advisory Committee by enabling the latter to report more frequently to the Council and by involving the Committee more closely into the Council’s activities, such as panels and briefings.
PURIFICACION QUISUMBING, Chairperson of the Human Rights Council Advisory Committee, said that the Committee Experts had had an extensive discussion this morning among themselves concerning their working relationship with the Human Rights Council
DHEERUJLALL SEETULSING, Member of the Advisory Committee, summarized this morning’s discussion and said that the Advisory Committee was expecting more interaction with the Human Rights Council and that better communication channels be set up with the Council. Among other issues they had discussed this morning was the fact that the Committee would also like to get the opportunity to meet with the sponsors of relevant Council resolutions.
ROSSLYN NOONAN of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, said that last Friday, the Council’s working group had adopted ad referendum the final draft declaration on human rights education and training, for which the Advisory Committee had set the foundations. Human rights education and training, and community and capacity development, were at the heart of national human rights institutions’ responsibilities. The development of this important instrument had been a particular focus of the International Coordinating Committee. They had been impressed by the quality of the Advisory Committee’s work and had greatly appreciated the consultative approach the Committee had undertaken. In turn, national human rights institutions and the International Coordinating Committee as their global voice had actively engaged in, and supported the Declaration’s drafting process at all its stages. They were confident that the final adoption of the Declaration by the General Assembly would send a strong message about the recognition of human rights education and training.
Discussion on Best Practices in the Matter of Missing Persons
The Report on best practices in the matter of missing persons, prepared by the drafting group of the Advisory Committee on missing persons (A/HRC/AC/6/2), looks at, inter alia, measures to prevent persons from going missing, the restoration of family links, the current mechanisms established to clarify the fate of missing persons, the right to know, the criminal investigation and prosecution of human rights violations linked to missing persons, the legal status of missing persons and support for families of persons unaccounted for, the management of the dead and identification of human remains and the information management and legal protection of personal data.
LATIF HUSEYNOV, Member of the Advisory Committee and Rapporteur of the Drafting Group on Missing Persons, introducing the draft report, said the study was built upon the progress report that had been endorsed by the Advisory Committee at its fourth session. The drafting group had further elaborated the legal obligations of States as well as parties to an armed conflict relating to the issue of missing persons and introduced a wide range of examples that could be characterized as illustrating best practices in the matter of missing persons. Missing persons were those whose families were without news of them as well as those who were reported, on the basis of reliable information, unaccounted for as a result of an international or non-international armed conflict. The report did not cover cases when people went missing as a result of other situations, such as natural disasters or internal violence or disturbances. The term “missing persons” was different from and broader in scope than “enforced or involuntary disappearances”, as defined in the International Convention for the Protection of All Persons from Enforced Disappearance. The drafting group was also of the opinion that not only missing persons should be considered as victims, but also the members of their families.
The vulnerable situation of women had also been addressed in the study. Women went missing in armed conflicts, including for sexual exploitation and many women survived conflicts in which their men folk had died or gone missing. The latter experienced many of the same problems as widows, albeit without official recognition of their status, said Mr. Huseynov. The issue of missing persons was a humanitarian problem with human rights and international humanitarian law implications.
Turning to the proposed measures, Mr. Huseynov said that national authorities should grant unhindered access to national and international bodies working in the area of human rights and humanitarian law to any places where people were being deprived of their liberty. It was also necessary to keep in mind that cases of missing persons could also constitute criminal offences, sometimes amounting to war crimes or crimes against humanity. States should ensure effective investigation and prosecution of all human rights violations linked to missing persons. Such a criminal investigation should be able to be conducted for as long as the fate and the whereabouts of the missing person remained unclarified. This obligation also included the duty to provide full protection to witnesses, relatives, judges and other participants in the proceedings.
Further, States should consider recognizing missing civilians as war victims and including their families in the system of social benefits, as provided for families of missing servicemen, said Mr. Huseynov. The study also attached great importance to the issue of forensic recovery of human remains and the use of DNA analysis for the identification of human remains. States should also raise public awareness of the problem of missing persons as a fundamental concern of international humanitarian law and human rights law. Finally, the establishment of a Special Rapporteur on missing persons would significantly enhance the existing international mechanisms protecting the rights of missing persons and their families.
In the ensuing discussion, members of the Advisory Committee discussed whether the proposal to set up a new mandate for a Special Procedure on missing persons was a necessary step. Other members commended the drafting group on the massive development the work had passed through. The draft study had finally developed into a very solid report with practical best practices and action-specific measures. While setting up a Special Procedure would give momentum to the implementation of the proposed measures at the national and regional levels, a Working Group could be better suited than a Special Rapporteur. A member also welcomed the fact that the report dealt with the issue of women.
Another member wondered on what criteria the working group had based its distinctions between the various categories of missing persons. There were also missing persons in cases of covert violence and non-open conflicts, not only in armed conflicts. Sometimes people went missing due to actions undertaken by police and security forces, such as in the case of a dictatorship. There were also disappearances in the settings of drug-trafficking and gangs. Other members felt that the mandate of the Human Rights Council had been clear and that it focused on missing persons and that it did not include enforced disappearances. The mandate further focused on missing persons in war situations and not in normal situations; this was a very specific mandate and the Committee should limit itself to it.
Observer States speaking on the subject said that they were satisfied with the outcome of the drafting group’s report. The report made it clear that the term “missing person” was different from that of “enforced disappearances”. The work should however not duplicate the work of already existing international mandates on missing persons and their families.
LATIF HUSEYNOV, Member of the Advisory Committee and Rapporteur of the Drafting Group on Missing Persons, in concluding remarks, said that the drafting group would come together to analyze which recommendations could be taken on board and which amendments could be made to the study. The mandate given to the Advisory Committee had been clearly set out in the Human Rights Council’s resolution. The working group had focused on the humanitarian side of the problem, more than the criminal aspects of it.
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