Established on February 29, 1980, the United Nations Working Group on Enforced and Involuntary Disappearances (WGEID) was the first UN mechanism designed to respond to a particular human rights issue. WGEID was not intended to be a permanent solution to the problem of enforced and involuntary disappearances, and accordingly the original mandate only tasked the Working Group with collecting information and making recommendations to the UN Commission on Human Rights. Today, WGEID examines reports of enforced disappearances received from human rights groups and family members of the disappeared. Despite its expanded role, however, it is still not authorized to directly investigate individual cases, protect petitioners against reprisals, establish responsibility, judge, sanction, exhume remains, grant reparations, or deal with cases involving non-government actors.
In essence, WGEID’s role is that of a mediator with no adjudicatory or enforcement powers. It facilitates communication between families and government actors and issues urgent communications asking governments to take measures to locate and protect disappeared persons. WGEID does not require exhaustion of all domestic legal remedies, but cases must be submitted by relatives of the disappeared rather than by an NGO or other third party. It may also refer matters to the UN General Assembly through the Secretary-General upon receipt of well-founded information of widespread or systematic state-sponsored enforced disappearances. However, if the government fails to respond, or if the General Assembly and Secretary-General take no action, the Working Group has virtually no power to proceed further. Thus, while the WGEID has handled a total of 53,252 cases in over eighty countries since its creation, it has only clarified, closed, or discontinued 10,362 of them.
The International Convention for the Protection of all Persons from Enforced Disappearances, which entered into force in December 2010, overcomes some of the WGEID’s shortcomings. Its 23 States Parties undertake binding legal obligations and are subject to review by a Committee authorized by the Convention. Yet, for the vast majority of states that have not yet ratified the Convention, WGEID remains the sole UN organ with specific authority to deal with enforced disappearances.
The recent case of Cote d’Ivoire illustrates the persistent weaknesses of such a system. Cote d’Ivoire is not a signatory to the Convention, and thus WGEID is the only available mechanism for the victims of at least 24 reported cases of politically motivated disappearances, which have allegedly occurred since the disputed November 28, 2010 presidential elections in Cote d’Ivoire. After investigating the sudden and numerous disappearances in Cote d’Ivoire occurring in the wake of the ongoing political crisis, WGEID suggested that these disappearances are systematic and calculated moves against supporters of the internationally-recognized winner of the election, Alassane Outtara. UN sources and human rights organizations such as Human Rights Watch have agreed with WGEID’s conclusions, stating that forces loyal to President Laurent Gbagbo are responsible for widespread human rights violations, including involuntary disappearances against Outtara’s supporters. Yet, because the WGEID operates primarily as a fact-finding body, it cannot give legal effect to its conclusion that the Ivorian government is responsible for human rights violations, nor compel it to cease or prevent such abuses.
WGEID has two viable options for taking action on the Cote d’Ivoire situation: (1) it could bring the matter to the attention to the General Assembly for referral to the Security Council; or (2) it could make a recommendation to a competent regional or domestic court system. If the General Assembly referred the matter, the Security Council could increase troop presence in the ongoing UN peacekeeping mission in Cote d’Ivoire or establish a negotiation team to facilitate a peaceful resolution. In the alternative, WGEID could recommend that the Community Court of Justice of the Economic Community of West African States (ECOWAS), which was granted the power in 2007 to review violations of human rights in all member states, take action. While the African Charter on Human and Peoples’ Rights does not specifically mention enforced disappearances, such actions would likely violate the rights to life and integrity of the person (Article 4), human dignity (Article 5), and liberty and security of the person (Article 6). Unfortunately, this regional court has until recently been plagued by access problems and relatively few human rights cases have been successful.
For those states which are not party to the International Convention for the Protection of All Persons from Enforced Disappearances, WGEID functions as a starting point for families to get answers and raise awareness of the situation of their relatives. However, WGEID’s limited mandate forces it to maintain a balance between its position as an advocate for families of the disappeared and effective communication with the governments perpetrating the disappearances. The entry into force of the new International Convention makes it unlikely that WGEID’s mandate will be strengthened. Therefore, for WGEID to be effective, the Security Council and regional tribunals must act upon its recommendations, or else countries will continue to defy requests by WGEID and families will continue to go without answers.