ASIA: When is an enforced disappearance “clarified”?

June 18, 2007

An Open Letter to the UN Working Group on enforced and involuntary disappearances

Mr. Santiago Corcuera
Working Group on enforced and involuntary disappearances
8-14 Avenue de la Paix
1211 Geneva 10

Fax:   +41 22 917-9006

Dear Mr Santiago Corcuera

ASIA: When is an enforced disappearance “clarified”?

The Asian Legal Resource Centre is writing to you today to establish our position on the circumstances under which the enforced disappearance of a person can be considered “clarified”. We are doing this after finding that a number of recent cases of forced disappearance that we had submitted to the Working Group have not been pursued on the grounds that family members of the victims accepted compensation from the state.

When someone goes to a national or international agency seeking information and assistance concerning the disappearance of another person, what is expected? Some of the questions that the complainant will want answered include the following:

1. Did a state agent (i.e. a police officer or soldier) or agents arrest the person before he or she disappeared? If so: when, where, for what reason and under what or whose authority?

2. Where and how was the person kept after being taken away? Was he or she tortured or not?

3. Is the person still alive or not? If dead, how did he or she die, and where are the remains of his or her body?

4. Who gave the orders for this to be done? Was it done with the knowledge of higher authorities or not? Is it part of a systemic programme of disappearances or not?

5. Was the family informed at any stage of the arrest or detention, or if dead, after death? Who, if anyone, had responsibility to inform the family?

6. What action, if any, has been taken to investigate? Who is responsible for the investigations? Who did investigations, and what were the findings? What action, if any, followed from the investigation? If there has been no investigation, why not?

Following from the above, the question arises of whether or not payment of compensation by the state, or acceptance of compensation, amount to clarification of an enforced or involuntary disappearance. There are two possible answers.

First, the state has addressed, to the fullest extent possible, all the complainant’s questions regarding the arrest, detention and treatment of the person, and where dead, the circumstances of death and disposal of remains. It has also thoroughly investigated and taken criminal legal action against the perpetrators in accordance with the international standards. Being satisfied with the answers received concerning these questions, and the actions taken against the alleged perpetrators, the family of the victim also compensation. Under these circumstances, it can be said that compensation is part of a set of remedies that serve to clarify the disappearance.

Second, the state has not addressed the complainant’s questions but has merely offered compensation. This may be the only thing that the state has offered to the family of the victim. The state may be deliberately concealing the answers to these questions, or may be prevented from obtaining them by agents engaged in forced disappearances and their accomplices. The complainant has the choice to either accept the compensation or get nothing. Compensation in this scenario is a form of compromise.

In the second case, the question that then arises is: if the complainant accepts the compensation, does this imply that all other issues relating to the arrest, detention, treatment, circumstances of death and disposal of remains of the victim as well as the action taken by the state against the perpetrators have been satisfied? The answer must be no. A payment of compensation alone is nothing more than that. Nothing more can be inferred from it.

The presumption that a forced disappearance has been clarified because the state has paid compensation and the complainant has accepted it is based on some serious misconceptions (or deliberate misinterpretations) about the legal obligations of the state in dealing with disappearances. When the state receives a complaint of forced disappearance, it is obliged to investigate, as in any other criminal case. Would it be sensible or expedient for a society to consider cases of murder or armed robbery “clarified” by the payment of compensation? Clearly, there is no legal basis for this position.

In conclusion, to consider compensation as clarification is to dilute the state’s responsibility. It is to diminish the criminal element in the offence, which under international law is one from which no derogation can be permitted. It is to allow the state to disclaim a whole gamut of obligations by the simple performance of one. It is to trivialise the very notion of heinous crime under international norms. The burden cast on the state to clarify such matters must be proportionate to the gravity of the offence: thus, to accept payment of compensation as a form of clarification is entirely unacceptable.

In this respect, I would remind you of section 3 of the Working Group’s revised methods of work (14 November 2001), which states that:

“Clarification occurs when the whereabouts of the disappeared persons are clearly established as a result of investigations by the Government, inquiries by non-governmental organisations, fact-finding missions by the Working Group or by human rights personnel from the United Nations or from any other international organisation operating in the field, or by the search of the family, irrespective of whether the person is alive or dead.”

Here, the operative clause, upon which your mandate hinges, is “when the whereabouts of the disappeared person is clearly established”. Payment or acceptance of compensation alone does not under any circumstances satisfy this requirement.

Please be informed that this is the unequivocal and irreversible position of the Asian Legal Resource Centre on the matter of compensation in cases of forced disappearances, and we will not accept, in any case, the payment of compensation alone as being a satisfactory cause for the closing of a case of enforced or involuntary disappearance.

Yours sincerely

Basil Fernando
Executive Director
Asian Human Rights Commission, Hong Kong

1. Ms Louise Arbour, UN High Commissioner for Human Rights
2. Homayoun Alizadeh, Regional Representative, OHCHR Regional Office, Southeast Asia