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Human Rights Comment
Human rights defenders’ work is vital for redress to victims of enforced disappearance

Last March I published an Issue Paper on Missing persons and victims of enforced disappearance in Europe, aiming to help Council of Europe member states improve their law and practice. Much remains to be done, considering that thousands of cases of missing persons and enforced disappearance remain unresolved in Europe, perpetuating the suffering of their loved ones, which is passed on from one generation to another. Addressing these questions is often dependent on governments’ political agendas, which explains the slow progress made so far. As I learned last June at a roundtable I organised in Strasbourg with a group of human rights defenders active on these issues, they face a number of serious obstacles to their work.

Persisting obstacles in addressing cases of missing persons and enforced disappearance

Cases of missing persons and enforced disappearances where the victims remain unaccounted for are not an issue of the past, irrespective of when they occurred. Indeed, besides continuous grief, families face various problems years after their loved ones have gone missing. In many countries, relatives are compelled to declare the death of missing or disappeared persons whose fate is not yet clarified in order to enjoy their rights, such as those related to inheritance and social welfare. This is often very traumatizing for the relatives, as they sometimes feel they are being forced “to kill” their loved ones.

Usually impunity for crimes of enforced disappearance goes hand in hand with impunity for other serious human rights violations and results in the recurrence of violations. Impunity sometimes has old roots, notably when past violations have not been acknowledged by the states concerned. Often it appears that investigations into cases of enforced disappearances are not effective, for a variety of reasons: the qualification of crimes is not adequate (e.g. often investigated as kidnapping or a crime against humanity); the case may be closed due to statutes of limitations after lengthy investigations; there may be a reluctance to punish members of the state executive; the protection of witnesses and victims is inadequate. As a result, perpetrators are not held to account while some of them even continue to serve in law enforcement, security or military structures.

Another concern relates to the lack of or very slow implementation by respondent states of the judgments of the European Court of Human Rights in cases of missing persons and enforced disappearance, thus failing to fulfill their obligations under the European Convention on Human Rights. Even in cases where mass graves have been located and bodies of missing and forcibly disappeared persons have been identified and handed over to their relatives, investigations have not taken place and perpetrators have not been punished.

In several European countries, there are no adequate legal provisions regulating the situation and status of missing or forcibly disappeared persons and their relatives. Even when specific laws are adopted, they do not always serve the purpose and are not adequately implemented, as, for example, in Bosnia and Herzegovina.

Situation of human rights defenders working on transitional justice issues

Civil society actors and other human rights defenders are crucial to human rights, democracy and the rule of law. If they are not able to operate, then these values and standards are under threat. These actors perform essential tasks in: making the human rights systems function by bringing complaints before domestic and international mechanisms; helping victims of human rights violations to access remedies and obtain other forms of support and reparation; advocating for changes in policy and legislative frameworks and their implementation; and raising public awareness on human rights. In some cases, NGOs and individual human rights defenders are the only recourse for victims and vulnerable persons.

However, the situation and the work environment of human rights defenders are negatively affected by various trends in Europe. Depending on the country, I have noted that obstacles to their work may take the form of: legal and administrative restrictions impeding the registration of human rights organisations and their access to funding; burdensome financial and reporting requirements; judicial harassment; smear campaigns; threats and intimidation; abusive control and surveillance; confiscation and destruction of working materials; unlawful arrest or detention; ill-treatment; disappearance and death. The absence of effective investigations into violations committed by state and non-state actors against human rights defenders targeted because of their human rights work remains a major problem in a number of European states.

I have noted with concern that in certain countries, such as in Azerbaijan, Russia and Turkey, increased restrictions in the field of freedoms of association, peaceful assembly and expression have resulted in a sharp deterioration of the working environment for human rights defenders.

Human rights defenders and organisations working on transitional justice issues, including in conflict and post-conflict contexts, face intimidation, pressure, threats and attacks as they challenge the mainstream national narrative in their community or country. Associations of relatives of missing persons or victims of enforced disappearance as well as human rights NGOs play a vital role in establishing the facts and  pursuing justice, including by advocating for the adoption of adequate legislation, contributing to the search for and identification of remains, providing legal and psychological aid to victims, and engaging in peace-building processes.

However, they often do so at great personal risk, having been subjected to reprisals, harassment and even enforced disappearance in some cases. For example, the Committee Against Torture and the Joint Mobile Group which are active in combating impunity and in following cases of missing persons and enforced disappearance in the North Caucasus in Russia, in particular in Chechnya, were subjected to numerous physical attacks in recent years. In situations of armed conflict or acute crisis, human rights defenders play an essential role in documenting human rights violations and in helping victims. They also however face difficulties in accessing areas affected by on-going violence, such as South-Eastern Turkey, or by an armed conflict as is currently the case in the east of Ukraine.

The way forward

Further to the recommendations that I made in the Issue Paper on Missing persons and victims of enforced disappearance in Europe, I would like to underline some important points drawn from the round-table with human rights defenders on this topic in order to address some of the outstanding issues.

Given the gravity of the human rights violations, clarifying the fate of missing persons and victims of enforced disappearance should be a matter of priority for the governments concerned, especially considering that this task is increasingly difficult with the passing of time. The involvement of international and European actors, including the European Union and the Council of Europe, is crucial for transitional justice issues and for providing assistance to the states concerned. In addition, National Human Rights Institutions need to be more active on issues related to cases of missing persons and enforced disappearances, notably with regard to the execution of judgments of the European Court of Human Rights.

States should improve judicial mechanisms, notably by defining enforced disappearance as a continuous crime in national law and by ratifying the UN Convention for the Protection of All Persons from Enforced Disappearance. In addition, law enforcement officials, judges and lawyers should be trained on the importance of combating impunity, as well as standards, legal obligations and good practices related to cases of enforced disappearances. The application of the universal jurisdiction principle to international crimes could be considered in relation to cases of enforced disappearance, as it may contribute to identifying and punishing perpetrators, and to recovering remains.

There is also a range of non-judicial mechanisms that could be put into place. For example, a system of reporting cases of missing persons and enforced disappearance and of verification of such reports could usefully be established at national level. The mapping of mass graves and exhumation of remains necessitates close co-operation between various actors, including families of the victims, local communities, judicial and law enforcement authorities as well as civil society organisations. Instead of having to declare the death of their relatives, the families of missing persons and forcibly disappeared persons should be issued a certificate of absence.

Last but not least, the international community needs to engage more in building the capacity and expertise of human rights NGOs active in this area.  At the same time, human rights defenders should continue interacting and exchanging experiences in this respect and help each other to work on cases of missing persons and enforced disappearances.

Nils Muižnieks

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Strasbourg 29/08/2016
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