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Working Group on Enforced Disappearances: the Atrocious Crime of Enforced Disappearance Continues to Happen and Takes New Shapes and Forms

Morning, 21 September 2021

Working Group on Use of Mercenaries: the Increasing Number of Private Military and Security Companies Operating in the Humanitarian Space Exacerbates the Risk of Violations of Human Rights and International Humanitarian Law

Council Concludes Dialogue with the Independent Expert on the Promotion of a Democratic and Equitable International Order

The Human Rights Council this morning held an interactive dialogue with the Working Group on enforced or involuntary disappearances, started an interactive dialogue with the Working Group on the use of mercenaries, and concluded its dialogue with the Independent Expert on the promotion of a democratic and equitable international order.

Henrikas Mickevicius, Vice-Chair of the Working Group on enforced or involuntary disappearances, said that the atrocious crime of enforced or involuntary disappearance continued to exist. Like COVID-19, when one variant of the virus seemed to be neutralised, another one appeared. In the same way, enforced disappearances continued to happen, taking new shapes and forms. He presented the thematic section of the report focused on enforced disappearances in the context of transnational transfers. The Working Group also presented as an addendum the follow-up to the recommendations made by the Working Group following its visit to the Gambia, from 12 to 19 June 2017 and Albania, from 5 to 12 December 2016.

In the discussion on enforced disappearances, speakers said that unfortunately enforced or involuntary disappearances continued to be a phenomenon that occurred in all regions of the world. They reaffirmed their commitment to prevent such practices and to support the victims and their families in their search for truth, justice and reparations. Some speakers said that the Working Group's conclusions had proven to be unsubstantiated and urged the Working Group to verify the credibility of the sources, as required by the Code of Conduct of the Special Procedures.

Speaking in the discussion were: Lithuania on behalf of a group of countries, Egypt on behalf of a group of countries, Argentina on behalf of a group of countries, European Union, Greece, Liechtenstein, Japan, Armenia, Iraq, France, Egypt, Albania, Venezuela, Kenya, Cuba, Democratic People's Republic of Korea, United States, Russian Federation, Morocco, Peru, Nepal, Namibia, Belgium, China, Cyprus, Croatia, Portugal, Libya, Pakistan, Sudan, Ukraine, Afghanistan, Serbia, Yemen, United Kingdom, Azerbaijan, Uganda, Burkina Faso, Mauritania, Tanzania, Lesotho, Colombia, Belarus, Tunisia, Gambia, Ethiopia, Organization of American States, Indonesia and Argentina.

The following non-governmental organization also took the floor: Asian Legal Resource Centre, Ingenieurs du Monde, Helsinki Foundation for Human Rights, Il Cenacolo, Peace Brigades International, Syrian Center for Media and Freedom of Expression, Families of Victims of Involuntary Disappearance, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, Christian Solidarity Worldwide, and the Organization for Poverty Alleviation and Development.

The Council also started an interactive discussion with the Working Group on the use of mercenaries as a means of violating human rights and impeding the right of peoples to self-determination.

Jelena Aparac, Chairperson-Rapporteur of the United Nations Working Group on the use of mercenaries as a means of violating human rights and impeding the right of peoples to self-determination, presented the Working Group's thematic report, which highlighted the role of private military and security companies in humanitarian action. An increasing number of private military and security companies were operating in the humanitarian space, which exacerbated the risk of violations of human rights and international humanitarian law, and undermined humanitarian principles. The Working Group recommended moving beyond self-regulatory regimes and called for a binding international regulatory framework governing the conduct of private military and security companies.

In the discussion, speakers reiterated their concerns about the activities of private military and security companies, which acted in a sort of legal vacuum and with impunity, and insisted that it was necessary for the community of nations to have a legally binding international instrument for their regulation, in accordance with international law. Other speakers said that the use of private military and security companies in the humanitarian sphere was a highly complex issue, not only because of existing legal loopholes, but also because of the reluctance of a number of actors, including developed States, to address the human rights impact of the actions of such companies. As a result, they said they would submit a draft resolution on this matter.

Speaking in the discussion were: European Union, Cameroon on behalf of the group of African States, Greece, Armenia, Iraq, South Africa, Venezuela, Cuba, Russian Federation, Namibia, China, Libya, Pakistan, Azerbaijan and Cameroon.

At the beginning of the meeting, the Council concluded its discussion with Livingstone Sewanyana, the Independent Expert on the promotion of a democratic and equitable international order.

In the discussion, speakers stated that the multilateral responses to the pandemic so far implemented had proven to be weak, partial or often free of substantial effects and they regretted the enduring inequities resulting from the unfair distribution of global public goods like vaccines. They urged Member States to actively answer the call to forge renewed multilateral frameworks: equitable, people-centred, grounded in human rights and not in power relations, and driven by solidarity and international cooperation.

The following non-governmental organizations took the floor during the discussion: Action Canada for Population and Development, Sikh Human Rights Group, Associazione Comunita Papa Giovanni XXIII, iuventum e.V., China Society for Human Rights Studies, Global Appreciation and Skills Training Network.

The webcast of the Human Rights Council meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Human Rights Council's forty-eighth regular session can be found here.

The Council will resume its work at 3 p.m. this afternoon, to conclude the interactive dialogue with the Working Group on the use of mercenaries, followed by an interactive dialogue with the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes. It will then hear the presentation of thematic reports by the Secretary-General and the High Commissioner for Human Rights.

Interactive Dialogue with the Independent Expert on the Promotion of a Democratic and Equitable International Order

The interactive dialogue with Livingstone Sewanyana, the Independent Expert on the promotion of a democratic and equitable international order started on 20 September and a summary can be found here.

Discussion

Speakers said that the Independent Expert's thematic report was comprehensive and presented a serious effort to collect constructive suggestions from diverse meaningful stakeholders. They were concerned about public relations and the need to receive well-informed public support for good practices. Some speakers said that the multilateral responses to the pandemic so far implemented had proven to be weak, partial or often free of substantial effects and they regretted the enduring inequities resulting from the unfair distribution of global public goods like vaccines. Speakers urged Member States to actively answer the call to forge renewed multilateral frameworks: equitable, people-centred, grounded in human rights and not in power relations, and driven by solidarity and international cooperation. One speaker said that the multilateral system had always been a space for elites, excluding the majority of the world, and serving as a microcosm of the colonial, ableist, and patriarchal patterns they faced daily in societies. The speaker regretted that during this pandemic, the United Nations' international cooperation mandate had given way to the interests of States and corporations.

Concluding Remarks

LIVINGSTONE SEWANYANA, Independent Expert on the promotion of a democratic and equitable international order, thanked the delegations speaking in the Council for their strong call for renewed multilateralism. COVID-19 posed a serious test to the current world order and renewed multilateralism had never been so necessary as it was today. There was a need for solidarity and countries needed to speak with one voice, act together, and ensure that they overcame the current deficits. It was important to ensure vaccine equity and equal distribution of the vaccine between the Global North and the Global South. He concluded by saying that there was no need for political differences and that if States were speaking with one voice, there was no reason to believe that the current pandemic could not be overcome.

Interactive Dialogue with the Working Group on Enforced or Involuntary Disappearances

Presentation of Report

HENRIKAS MICKEVICIUS, Vice-Chair of the Working Group on Enforced or Involuntary Disappearances, said that today, there was more awareness about the atrocious crime of enforced or involuntary disappearance and better advocacy to confront it. However, this horrifying practice continued to exist, and, what was more, it morphed. New, alarming trends had been registered and posed formidable and ever-changing challenges. In its report, the Working Group highlighted the transmission of 651 new cases of enforced disappearance to 30 States, including 86 cases transmitted under the urgent action procedure, to 19 States. Although high, these figures were not a full representation of the magnitude of the enforced disappearances in the world today. A comparison between enforced disappearances and the devastating pandemic could be made. The pandemic continued to deeply affect daily lives after almost two years. When one variant of the virus seemed to be neutralised, another one appeared. In the same way, enforced disappearances continued to happen, taking new shapes and forms.

The thematic section of the report focused on "enforced disappearances in the context of transnational transfers". The report illustrated how the Working Group had documented cases in which States resorted to transnational transfers that led to enforced disappearances with the participation, support or acquiescence of other States, in an attempt to capture their nationals or third country nationals, often in the name of confronting terrorism. The vast majority of these cases appeared to contravene national and international law, including the absolute prohibition of enforced disappearances, as provided for in the 1992 Declaration.

The Working Group also presented as an addendum the follow-up to the recommendations made by the Working Group following its visit to the Gambia, from 12 to 19 June 2017 and Albania, from 5 to 12 December 2016. In regard to Albania, the Working Group stressed the need to overhaul the existing institutional framework by establishing an independent, broadly mandated and multidisciplinary "one-stop shop" mechanism tasked with advancing the rights of victims and achieving national reconciliation. Concerning the Gambia, they had found that the Gambia had taken positive steps to move forward with the truth process; nonetheless, crucial actions to guarantee access to justice, remedy and reparation for victims were yet to materialise.

The Vice-Chair of the Working Group said that in order to tackle enforced disappearance, the international community needed commitment and determination from all. In some cases, results might be obtained when concerted action was taken among different stakeholders. However, these were always too few compared to the amount of cases that were unresolved and ended up before the Working Group together with other thousands of outstanding cases. He insisted that it should never be forgotten that, behind these numerous cases, were human beings who became victims of one of the most heinous human rights violations. Mr. Mickevicius concluded by saying that what had been done so far was obviously not enough to effectively address this offence to human dignity and that States' cooperation with the Working Group was key to prevent, combat and eradicate enforced disappearances. He called on the international community to come together and strengthen the efforts to tackle this scourge. One step in this direction would be for all States to ratify or accede to the International Convention for the Protection of All Persons from Enforced Disappearance and to recognise the competence of the Committee on Enforced Disappearances to receive and examine individual and inter-state communications.

Discussion

Speakers said that unfortunately, forced or involuntary disappearances continued to be a phenomenon that occurred in all regions of the world. They reaffirmed their commitment to prevent such practices and to support the victims and their families in their search for truth, justice and reparations. They called on States that were not yet parties to the International Convention for the Protection of All Persons from Enforced Disappearance to accede to it, in order to send a clear message that this heinous crime was repudiated by the entire international community. Further, speakers stated that enforced disappearance was a serious violation of human rights and no circumstances may be invoked to justify it; they urged all States to immediately stop and prevent enforced disappearances, initiate impartial and independent investigations, and protect the rights of the victims and their families. Some speakers said that the COVID-19 pandemic had clearly had a devastating impact on the enjoyment of human rights around the world and in this regard, they welcomed the publication of the Group's eight guidelines and encouraged States to comply with their international obligations on enforced disappearance.

Opposing those views, other speakers said that the Working Group's conclusions had proven to be unsubstantiated and therefore urged the Working Group to verify the credibility of the sources, as required by the Code of Conduct of the Special Procedures. Some speakers said that the Working Group had deviated from the established rules of procedure by accepting comments that often did not contain any new factual information, but only personal opinions, assumptions or allegations made by anonymous sources. Some speakers firmly opposed and totally rejected the Working Group's use of inaccurate information and public denigration and urged it to work in an objective, impartial and non-selective manner. Some encouraged the Working Group to always keep in mind the principles of objectivity, impartiality, non-selectivity and effective verification of the facts in the fulfilment of its mandate, which was the north of the work of all the Special Procedures of this Council. One speaker said that it was striking that the report contained practically no cases or concerns regarding developed countries, despite the fact that there were overwhelming reports and evidence presented by civil society on cases of disappearances of migrants, refugees, asylum seekers and members of ethnic minorities, including children, in developed countries.

Interim Remarks

HENRIKAS MICKEVICIUS, Vice-Chair of the Working Group on Enforced or Involuntary Disappearances, said that in some instances, enforced disappearances could be considered as crimes against humanity. He recommended that States willing to take the matter further should cease to justify disappearances on the grounds of combatting terrorism; ensure that agreements - between a State which sought to bring a national to a country and a hosting State – were in compliance with human rights; ensure the implementation of procedural guarantees; and carry out full comprehensive individual assessments.

Discussion

Speakers deeply regretted the constraints imposed by the COVID-19 pandemic on the activities of the Working Group on enforced or involuntary disappearances, particularly with regard to the impossibility of conducting country visits. They were concerned about the persistence of enforced disappearances, which constituted extremely serious human rights violations. In certain circumstances defined by international law, enforced disappearances might constitute a crime against humanity. Other speakers condemned all enforced disappearances and called on governments to conduct transparent and independent investigations into all cases, hold those responsible to account, help clarify what happened to victims, and where possible, facilitate their return. The victims of enforced disappearances were often human rights defenders, political activists, journalists, and others who tried to exercise their fundamental freedoms, including freedom of expression. Enforced disappearances were clear violations of human rights and those practices could not continue unchecked.

Some speakers fully shared the concerns expressed in the report regarding the enforced or involuntary disappearance of minorities, activists, journalists, human rights defenders and political prisoners, and joined in the Working Group's concern about reprisals against the families of victims of disappearance and human rights defenders and the organizations that supported them. They supported recommendation 108 of the report, which called on States to adopt specific measures to prevent acts of intimidation and reprisals, protect those working on cases of enforced disappearance, and punish the perpetrators of such attacks. Some speakers mentioned that for more than 40 years, the Working Group had brought almost 60,000 cases of enforced disappearance to the attention of States and had helped to elucidate several thousand of them, thereby strengthening the fight against impunity for the perpetrators of these unacceptable practices. They called on all States to cooperate fully with the Working Group and to take all measures to ensure that those responsible for these practices did not go unpunished. States were encouraged to ratify the Convention and to recognise the competence of the Committee on Enforced Disappearances to deal with individual communications.

Concluding Remarks

HENRIKAS MICKEVICIUS, Vice-Chair of the Working Group on Enforced or Involuntary Disappearances, said that the members of the Working Group were impartial and did not solicit any cases. They only proceeded with cases that they received. Since the Working Group was created in 1990, it had transmitted more than 59,000 cases to Sates, and these figures were only the tip of the iceberg. "Someone is being disappeared as we speak", said Mr. Mickevicius, urging the support of the Human Rights Council and United Nations bodies, international and regional organizations, but mostly from the States.

Interactive Dialogue with the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Right of Peoples to Self-determination

Presentation of Report

JELENA APARAC, Chairperson-Rapporteur of the United Nations Working Group on the use of mercenaries as a means of violating human rights and impeding the right of peoples to self-determination, presented the thematic report of the Working Group which highlighted the role of private military and security companies in humanitarian action. She stated that an increasing number of private military and security companies were operating in the humanitarian space, which exacerbated the risk of violations of human rights and international humanitarian law, and undermined humanitarian principles. The growing reliance on private military and security companies by humanitarian actors had come with significant challenges with regards to the protection of civilians and the guarantee and respect of human rights and international humanitarian law. Most importantly, the role of these private companies in humanitarian action, and the commercialisation of humanitarian aid, raised concerns over their impacts on the humanitarian principles of impartiality, neutrality and operational independence.

Ms. Aparac expressed the concern of the Working Group about the increasing involvement of private military and security providers in humanitarian action, given that it may render the adequacy of security as a State function and a public good, reserving security only for those who could afford it. It was necessary to critically reflect on the types of situations and spaces in which private military and security companies operated, and the array of human rights and international humanitarian law violations that could and did arise. When armed private security personnel operated closely alongside military personnel, such as State armies or United Nations peace operations, and they engaged in the use of force, this could compromise the principle of distinction between civilian and military persons and objects, creating confusion about legitimate targets. The report analysed the fundamental lack of transparency around these operations, most notably in the relationships between clients and service providers. She detailed that such reflections should be taken into consideration in addressing gaps in the regulatory framework governing the conduct of private military and security bodies, adding that the Working Group called on States to regulate, as a minimum, critical issues such as: prevention of human rights and international humanitarian law abuses; the scope of permissible activities of private military and security companies; accountability; and remedies for victims of such abuses. She specified that robust State regulation and oversight over private military and security companies through domestic legislation was also essential.

The Working Group encouraged a multi-dimensional response to the regulation of private military and security companies. Only a comprehensive approach adopted at State and international levels could effectively regulate these private companies and ensure accountability. The Working Group recommended moving beyond self-regulatory regimes and called for a binding international regulatory framework governing the conduct of private military and security companies.

Discussion

Speakers reiterated their concerns about the activities of private military and security companies, which acted in a sort of legal vacuum and with impunity. It was necessary for the community of nations to have a legally binding international instrument for the regulation of private military and security companies, in accordance with international law. International humanitarian law and humanitarian principles governed humanitarian assistance, but they did not mention private military and security actors. States' obligations to protect and respect human rights extended to protection against human rights abuses by third parties, including private military and security companies. Other speakers noted with increasing concern that the Working Group continued to receive reports of the involvement of private military and security companies in human rights violations, including enforced disappearances, summary executions, indiscriminate killings, and sexual exploitation and abuse. They also noted with concern the serious reputational implications for humanitarian actors using private military and security companies and the risks they ran if they worked together. Risks included humanitarian actors and their premises being perceived as legitimate military targets, dragging them into a conflict, if force was used by the personnel of private military and security companies, undermining the principle of neutrality and giving the impression that humanitarian actors were involved in a conflict.

Some speakers said that the commercialisation of humanitarian aid and the use of private military and security services in humanitarian action was on the rise and may impact humanitarian operations, their principles, and the potential for abuses of human rights and international humanitarian law. This posed a concerning challenge to the concept of security both as a public good and as a State function. Other speakers said that the use of private military and security companies in the humanitarian sphere was a highly complex issue, not only because of existing legal loopholes, but also because of the reluctance of a number of actors, including developed States, to address the human rights impact of the actions of such companies. As a result, they said that they would submit a draft resolution on this matter. Some speakers were concerned about the way that private military and security companies were engaged in providing responses to health crises, including in the contexts of the Ebola outbreak and the COVID-19 pandemic, risking the securitisation of the health sector in relation to reports of human rights abuses, including the treatment of marginalised groups in detention. One speaker recalled that the Working Group's work would prove to be more effective if its scope was focused more clearly on mercenaries and mercenaries-related activities, which were clearly defined under international humanitarian law, and regretted that the report contained unsubstantiated accusations.