US embassy cable - 05GENEVA2613

UNCLAS SECTION 01 OF 02 GENEVA 002613 
 
SIPDIS 
 
L/UNA BRANCATO; IO; DRL 
 
E.O. 12958: N/A 
TAGS: FR, UNGA, UNHR, Human Rights 
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