Identifier
Created
Classification
Origin
05GENEVA2613
2005-10-28 04:42:00
UNCLASSIFIED
US Mission Geneva
Cable title:  

FINAL REPORT ON UNHCR WG SESSION OF FORCED DISAPPEARANCES (SEPTEMBER 12-23, 2005)

Tags:  FR UNGA UNHCR 
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This record is a partial extract of the original cable. The full text of the original cable is not available.
UNCLAS SECTION 01 OF 02 GENEVA 002613 

SIPDIS

L/UNA BRANCATO; IO; DRL

E.O. 12958: N/A
TAGS: FR UNGA UNHR
SUBJECT: FINAL REPORT ON UNHCR WG SESSION OF FORCED
DISAPPEARANCES (SEPTEMBER 12-23, 2005)


UNCLAS SECTION 01 OF 02 GENEVA 002613

SIPDIS

L/UNA BRANCATO; IO; DRL

E.O. 12958: N/A
TAGS: FR UNGA UNHR
SUBJECT: FINAL REPORT ON UNHCR WG SESSION OF FORCED
DISAPPEARANCES (SEPTEMBER 12-23, 2005)



1. (U) SUMMARY. The Intersessional Working Group to
elaborate a draft legally binding normative instrument
completed work on a Convention for the Protection of All
Persons from Forced Disappearance and, although there was no
consensus, agreed that there was no impediment to
consideration of the text by the Human Rights Commission.
The U.S. stated objections on several points that will be
recorded in the final report of the session. END SUMMARY.


2. (U) The Fifth and Final session of the Working Group to
elaborate a draft legally binding instrument on Enforced
Disappearance was held in Geneva September 12 - 23, 2005.
The U.S. Delegation included Gilda Brancato (L/HRR),Mission
Legal Adviser Jeffrey Kovar, Deputy Legal Adviser Paula
Barton, Political Counselor Velia DePirro and Human Rights
Officer Jan Levin.


3. (U) Overview. The French Chair of the Working Group
opened the meetings by announcing that he intended to have
the Working Group finish its consideration of issues not
taken up at the January session, then go through the whole
draft text again for editorial changes only. He stated he
would only accept substantial changes if they commanded
consensus. Outstanding issues were 1) the role of non-state
actors; 2) the territorial reach of a treaty; 3) the Right to
Know and, finally, 4) the form of the instrument and the
nature of the monitoring body. The first of these was
resolved with a compromise language formula concerning state
action which reflects the international law position of the
United States; the second was resolved when China withdrew
its proposed article in favor of making an interpretive
declaration at the time of ratification. The other two
issues consumed much of the two week negotiation. On the
final reading, several other issues were raised, including
definition, criminal intent, the statute of limitations and
"found in" jurisdiction, as well as the defense of superior
orders, non-refoulement and the reference to the term "Crimes
against Humanity." US Del made statements of position for
the record regarding these issues.


4. (U) The Right to Know. How to provide access to
information was one of the most controversial issues raised
in the negotiations. The Latin countries with some Asian and
European allies insisted that a "Right to Truth" be included
in the text that would guarantee access by families and other
concerned parties to all information related to the possible

enforced disappearance of an individual. The United States
with the support of several common law countries insisted
that the right to information was never absolute, that
domestic law in many countries was incompatible with such an
absolute right and that there were occasions when there was a
legitimate public interest in withholding certain
information. US Del attempted to make revisions to both the
preamblar language of PP7 and the text of Article 24(2).
They sought support for the use of the term "Freedom of
Information" in the manner that it was used in the ICCPR and
in the USG approved resolution on the Right to Truth at the
CHR, a formula also compatible with US domestic law. In the
end, an important reference to "freedom of information" was
included in the preamble, and statements were recorded that
the right to truth could only be understood as implemented
through a freedom of information system. Nevertheless, we
could not achieve the level of clarity desired or changes to
Article 24(2). The US Del requested that the record
indicate its dissatisfaction.


5. (U) Monitoring Body. Despite a sharp split of opinion in
favor of an optional protocol to the ICCPR and use of the
Human Rights Committee (HRC) as the monitoring mechanism, it
was clear from the outset that the Chair envisioned a new
convention with an independent monitoring body. Arguments in
favor of the Chair's approach were that the HRC was already
overburdened and backlogged, that the new committee could be
composed of persons who were experts on the issue of Enforced
Disappearance, and that the independent body could
incorporate a system for addressing "urgent situations." The
contrary view (shared by the U.S.) held that an existing and
experienced committee would be more efficient and effective
and avoid redundancies and inconsistent jurisprudence, that
providing adequate financial support to the HRC could reduce
its backlog allowing it to accomodate the work of enforced
disappearance. In addition, the U.N. is in the process of
evaluating whether to consolidate all treaty bodies as well
as make other reforms and, because of that effort, this was
not the appropriate time to create a new treaty body. The
Chair finally acknowledged his view that the most important
reason for making a separate convention and treaty body was a
political one; that is, a separate treaty would underscore
the importance of the issue and it was what the families
wanted. There was extended debate concerning whether or not
a separate convention could legally be implemented using the
HRC but the final decision was made by the Chair. In an
attempt to insert some compromise the Chair proposed to
include a clause that called for a conference of states
parties within four to six years of entry into force to
evaluate the effectiveness of the new treaty body in light of
its performance and the U.N. reforms, and determine whether
it should be continued or replaced by an existing body.(This
suggestion actually drew a less than enthusiastic response
from the attendees but was included in the document anyway.)
The U.S. stated its objections to this result for the record.


6. (U) The Final Reading. US Del made numerous proposals
and raised objections for the record on Second Reading.
These objections included statements with reference to
preamblar paragraph 7 on the Right to Know, Article 2 on the
definition of an enforced disappearance, Article 4 on
Criminalization, Article 5 referring to Crimes Against
Humanity, Article 6(2) on Defense of Obedience to Superior
Orders, Article 8 on Statutes of Limitations, Article 9(2) on
"found in" jurisdiction, Article 16 on non-refoulement,
Article 17 on access to places of detention, and Article
24(2) again concerning the Right to Know. Several other
states expressed reservations on several provisions of the
final text. Notable were the concerns of Germany on the
Right to Know, New Zealand on reparations, and the
Netherlands on the danger of undercutting the U.N. system
with a new treaty body. Although the Second Reading was
proclaimed by the Chair to be editorial only, the Chair
included changes to text suggested by the Latin states, NGOs
and the families.


7. (U) No Consensus. Throughout the negotiations the US Del
met with the Chair to express serious concern that the pace
of the negotiations and failure to accommodate significant
legal concerns of the United States would make it impossible
for the U.S. to join a consensus. The Chair acknowledged the
problem but was adamant that this be the last session and the
product of this negotiation was his text and would go forward
to the Commission. The Chair made clear that all states
could submit their objections for the record in the Chair's
report. In the end, the Chair did not declare consensus, but
only stated that the working group could make no more
progress and its work was at an end. We have provided USG
changes to the draft Report and will be reviewing the final
Report as soon as it is prepared to verify that all of our
concerns are reflected.

8) (U) The Wrap-up. The final day of negotiations was
taken up with general statements by delegations. Many
delegations and organizations representing disappeared
persons reacted with outpourings of emotion over the
conclusion of the draft text. Several delegations also took
the occasion to restate their objections for the record. The
US Del delivered a statement confirming each of the
objections that it had previously raised. Text of that
statement was emailed to L/HRR.





Moley