ENFORCED DISAPPEARANCES: Child rights extracts from the report of the UN Working Group

Summary: Child rights extracts from the report of the UN Working Group

Child rights extracts from the report of the Working Group on Enforced or Involuntary Disappearances:

13. On 7 March 2011, the Chair-Rapporteur presented the Working Group's 2010 annual report to the sixteenth session of the Human Rights Council and participated in the interactive dialogue with Member States. During the reporting period, the Chair-Rapporteur made a series of presentations, including presenting a paper on ―How to guarantee non- repetition of human rights violations in transitional societies‖ to the conference titled Shaping a Truth and Reconciliation Mechanism for Burundi, held in Bujumbura in November 2010; papers on ―Designing national legislation on enforced disappearances‖ and ―Designing truth and reconciliation commissions‖ to a Workshop for Nepal Parliamentarians on Transitional Justice Processes held in Kathmandu in December 2010; a paper on ―Disappearances and secret prisons‖ to the National University of Timor-Leste, in Dili, February 2011; a paper on ―Criminalization of gross human rights violations, including enforced disappearances within the follow-up work of truth commissions‖ to a side event at the Human Rights Council in Geneva, March 2011; a paper on ―Preventing impunity and eradicating the crime of enforced disappearance‖ to a side event at the Human Rights Council in March 2011; a paper on ―Guaranteeing the non-repetition of human rights violations in the Democratic Republic of the Congo‖ to the conference ―Options for transitional justice in the Democratic Republic of the Congo: impunity, amnesty and reparations‖, at Kinshasa in April 2011; a paper on ―The legal protection of children from enforced or involuntary disappearances‖ to the United Nations expert meeting on ―The legal framework required to prohibit, prevent and respond to all forms of violence against children‖, held in Geneva, July 2011; a paper on ―The interface between international and domestic criminal justice‖ to the Prosecutor-General and Prosecutors, held in Male, Maldives, September, 2011; a paper on ―Dealing with enforced disappearances in timor- leste: promoting truth, justice, reparations and reconciliation" to the Law School, Trinity College, Dublin, in October 2011; and a paper on ―Developing cooperative strategies between the Committee on Enforced Disappearance and the Working Group on Enforced on Involuntary Disappearances‖ to the International Coalition Against Enforced Disappearances (ICAED) Conference on the Universal Implementation of the Convention Against Enforced Disappearances: A Task and a Challenge, held in Geneva in November 2011. During the year he also made a number of other conference presentations and gave a number of mandate-related trainings around the world.

General Comment of the Working Group: 2. Enforced disappearances entail the denial of the disappeared person's legal existence and, as a consequence, prevent him or her from enjoying all other human rights and freedoms. The disappeared person may keep his or her name, at least when the birth has been registered (and except in cases when the true identity of children, who have been taken away from their parents, is falsified, concealed or destroyed), but he/she is not shown in the record of detainees; neither is the name kept in the registers of deaths. The disappeared is de facto deprived of his or her domicile. His/her properties become frozen in a legal limbo since no one, not even the next-of-kin, may dispose of that patrimony until the disappeared appears alive or is declared dead, that is a ―non-person‖. (General Comment of the Working Group)

General Comment of the Working Group: 3. The right to be recognized as a person before the law is also implicated in the case of children who were born during their mothers' enforced disappearance, and who were thereafter illegally adopted. As far as their biological identity is no protected, their very own personality is not recognized before the law. Thus, article 20 of the Declaration provides that such acts of abduction, as well as the act of altering or suppressing documents attesting to their true identity, ―shall constitute an extremely serious offence, which shall be punished as such‖. The same article also provides that States ―shall devote their efforts to the search for and identification of such children and to the restitution of the children to their families of origin‖. (General Comment of the Working Group)

General Comment of the Working Group: 5. Enforced disappearances also entail violations of the rights of other persons, including the next-of-kin and others connected to the disappeared persons. Family members are prevented to exercise their rights and obligations due to the legal uncertainty created by the absence of the disappeared person. This uncertainty has many legal consequences, among others on the status of marriage, guardianship of under age children, right to social allowances of members of the families and management of property of the disappeared person. (General Comment of the Working Group)

General Comment of the Working Group: 9. Such a declaration should allow the appointment of a representative of the disappeared person, with the mandate to exercise his/her rights and obligations for the duration of his/her absence, in his/her interests and those of his/her next-of- kin. The latter should be allowed to manage temporarily the disappeared person's properties, for as long as the enforced disappearance continues, and to receive due assistance from the State through social allowances. In most cases, the disappeared persons are men and were the family breadwinners and special social support should be provided to dependent women and children. The acceptance of financial support for members of the families should not be considered as a waiver of the right to integral reparation for the damage caused by the crime of enforced disappearance, in accordance with article 19 of the Declaration. (General Comment of the Working Group)

63. The Working Group notes that children are also victims of disappearances. The disappearance of a child, his/her wrongful removal, and the loss of a parent through disappearance are serious violations of children's rights.

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