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In Dialogue with Colombia, Committee on Enforced Disappearances Asks about the Number of Victims and Missing Persons and about the Definition of Enforced Disappearance

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In Dialogue with Colombia, Committee on Enforced Disappearances Asks about the Number of Victims and Missing Persons and about the Definition of Enforced Disappearance

20 April 2021

The Committee on Enforced Disappearances this afternoon concluded its consideration of a report submitted by Colombia containing additional information under article 29 (4) of the Convention for the Protection of All Persons from Enforced Disappearance on measures taken to implement its provisions.

Committee Experts pointed out that despite the signature of the peace agreement, enforced disappearances continued in Colombia. They asked the delegation to clarify what kind of databases contained information on persons allegedly subjected to forced disappearance in the country, both in the context of the conflict and outside it. Specifically, the Committee would appreciate data on the missing persons presumed to be persons subjected to enforced disappearances in the strict sense of article 2 of the Convention, disaggregated by sex, age, ethnic origin and date of disappearance.

They asked the delegation to comment on Colombia's efforts to adapt the definition of enforced disappearance contained in article 165 of the Criminal Code to the definition in article 2 of the Convention and expressed concerns about the effect of the current provisions, which could dilute the responsibility of the State.

Adriana Mejía Hernández, Deputy Minister in charge of Multilateral Affairs at the Ministry of Foreign Affairs of Colombia, said Colombia continued to face the colossal challenge of dismantling armed groups, and drug trafficking was threatening the rule of law and the enjoyment of civil and political rights by all Colombians. Colombia recognised the right of all persons not to be subjected to enforced disappearances, which was a tragedy for victims and their families. In that regard, the Government would fight to ensure non-repetition and comprehensive reparations for victims.

Pledging to provide responses on the consolidated data on the number of victims of enforced disappearance in writing, the Colombian delegation added that the Attorney General's Office had cross-referenced all the data from all databases managed by Governmental entities, and established that there were 84,330 victims who were still disappeared. The remains of 7,732 individuals had been given to the families of the victims. There were about 10,499 child victims of enforced disappearances. The Attorney General's Office would work in each province to take enough genetic samples to identify the 4,935 victims of the armed conflict.

Regarding the definition of enforced disappearance, delegates explained that in article 165 of the Criminal Code, enforced disappearance was defined as the deprivation of liberty followed by the concealment or the refusal to provide information about their whereabouts. It covered all the grounds set out in the Convention, meeting all conditions outlined in article 2 of the Convention, and also expanded the breadth of potential perpetrators.

In her concluding remarks, Ms. Hernández said Colombia was committed to human rights, democracy and the rule of law. Colombia had taken due note of the concerns and points raised by the members of the Committee and reaffirmed that - notwithstanding the evident progress made since the beginning of this century - it would continue to make progress in strengthening national capacities to meet the challenges that persisted.

Mohammed Ayat, Committee Chairperson, thanked all those present for the exchange, despite the constraints related to the online format. All were keen to get back to dialogues with people present, he noted. Exchanges between States parties and the Committee should be seen as cooperation, as all had a role to play to ensure the implementation of the Convention.

The delegation of Colombia included representatives from the Ministry of Foreign Affairs, the Commission of Search for Disappeared Person, the Special Jurisdiction for Peace, the National Centre for Historical Memory, the Office of the Prosecutor, the Ministry of Justice and Law, the Colombian Institute for Family Well-being, the National Penitentiary and Prison Institute, the Unit for the Search of Disappeared Persons, and the Permanent Mission of Colombia to the United Nations Office at Geneva.

The Committee will issue its concluding observations on the report of Colombia at the end of its twentieth session, which concludes on 7 May. All documents relating to the Committee's work, including reports submitted by States parties, can be found on the session's webpage. Meeting summaries of the Committee's public meetings can be found here. The webcast of the meetings can be accessed at http://webtv.un.org/.

The Committee will next meet in public at 12 p.m. on Wednesday, 21 April, to consider the initial report of Mongolia (CED/C/MNG/1).

Report The Committee has before it the report of Colombia (CED/C/COL/AI/1).

Presentation of the Report ADRIANA MEJÍA HERNÁNDEZ, Deputy Minister in charge of Multilateral Affairs at the Ministry of Foreign Affairs of Colombia, extending her greetings to those present, said Colombia attached particular importance to dialogues with human rights treaty bodies.

The situation in Colombia now differed from that in 2016, when the country had submitted its report. Colombia continued to face the colossal challenge of dismantling armed groups, and drug trafficking was threatening the rule of law and the enjoyment of civil and political rights by all Colombians. Colombia recognised the right of all persons not to be subjected to enforced disappearances, which was a tragedy for victims and their families. In that regard, the Government would fight to ensure non-repetition and comprehensive reparations for victims.

A Research Unit established under the peace agreement had a sufficient budget to carry out its mandate. The Government sought to uphold victims' rights, as well as to fulfil the rights to truth and justice. There was a State apparatus in charge of investigating enforced disappearances by, inter alia, exhuming remains, providing victim support and reparations, and offering protection and prevention services.

The Constitution enshrined the principle of protection from enforced disappearances. Enforced disappearance was an offense under the Criminal Code, which defined it as the deprivation of liberty followed by concealment or refusal to provide information on the whereabouts of an individual. This definition offered a broader coverage which allowed meeting the needs of victims. The exercise of authority was an aggravating circumstance. In line with the Rome Statute, command responsibility was established in the State party, and allowed for the prosecution of leaders of both regular and irregular groups.

Article 44 of the Constitution set out that the rights of children and adolescents were fundamental rights, and protected children from neglect, physical violence, kidnapping and exploitation. The Children Code set out that children and adolescents would be protected from enforced disappearances. The Government had established their targeting for enforced disappearances as an aggravating circumstance.

In line with article 17 of the Convention, as part of prevention efforts, a single detention registration system had been established to ensure proper recording of information on detainees. The police, the national institution of forensic science, the Office of the Ombudsman and other entities had been brought together through a search mechanism to ensure a swift response to all cases of missing children. Inter-institutional measures had been implemented to strengthen the registration of disappeared persons. The Government had been working with the truth, justice and reconciliation system to establish a national database going back to 1988. This measure had contributed to the identification of corpses through the cross-referencing of data.

Questions by the Committee Experts JUAN JOSÉ LOPEZ, Committee Co-Rapporteur for Colombia, greeting the Colombian delegation, expressed hope that the dialogue would prove fruitful and contribute to the implementation of the Convention. He asked about steps taken by the State party to recognise the competence of the Committee to receive and examine individual and inter-State communications pursuant to articles 31 and 32 of the Convention.

He asked the delegation to comment on its efforts to adapt the definition of enforced disappearance contained in article 165 of the Criminal Code to the definition in article 2 of the Convention and expressed concerns about the effect of the current provisions, which could dilute the responsibility of the State.

The Co-Rapporteur asked about the case of a girl disappeared and raped by members of the armed forces in June 2020. The perpetrators had been tried on disciplinary grounds and merely sentenced to a dismissal and a 20-year ban from holding a position in the military, incurring no prison sentence.

How did Colombia ensure it met all its obligations under article 16 of the Convention with regards to psychiatric wards?

CARMEN ROSA VILLA, Committee Co-Rapporteur for Colombia, expressed confidence that this would be a fruitful dialogue. Despite the signature of the peace agreement, enforced disappearances continued in Colombia. Had the State party considered adopting a comprehensive policy on enforced disappearances?

She asked the delegation to clarify what kind of databases contained information on persons allegedly subjected to forced disappearance in the country, both in the context of the conflict and outside it. Could the delegation provide disaggregated data on cases of enforced disappearances, including those linked to migration and human trafficking?

Specifically, the Committee would appreciate data on the missing persons presumed to be persons subjected to enforced disappearances in the strict sense of article 2 of the Convention, disaggregated by sex, age, ethnic origin and date of disappearance. It would also be useful to have access to this data disaggregated by variables related to procedural elements, including the legal grounds, procedural stage and the decisions handed down.

Turning to the issue of false positive cases, the Co-Rapporteur asked the delegation to provide information on the number of extrajudicial executions, including the number of victims.

Ms. Villa inquired about the State party's efforts to ensure the adequate participation of victims in legal proceedings. Could the delegation indicate the measures taken by the State party to ensure that the military personnel under investigation for enforced disappearance could not influence the investigations? In this regard, she requested information on how an impartial investigation had been guaranteed in the 224 investigative processes for the crime of forced disappearance that concerned the GAULA groups. She also asked about 6,200 odd boys and girls recruited by FARC-EP, the Revolutionary Armed Forces of Colombia-People's Army, and other armed groups between 1989 and 2016 and who were still missing.

Replies by the Delegation The delegation said responses regarding the consolidated data required detailed information and would therefore be submitted in writing.

Concerning the competence of the Committee to receive and examine individual and inter-State communications pursuant to articles 31 and 32 of the Convention, delegates said Colombia had the proper mechanisms to respond to its legal obligations under the Convention. Its legal framework considered the offence of enforced disappearance and included mechanisms to determine the responsibility of perpetrators and provide reparations to victims. The Inter-American Court of Human Rights could receive individual communications related to enforced disappearances. Colombia was open to international scrutiny, as attested by its presentation of periodic reports.

Regarding the definition of enforced disappearance, delegates explained that in article 165 of the Criminal Code, enforced disappearance was defined as the deprivation of liberty followed by the concealment or the refusal to provide information about their whereabouts. It covered all the grounds set out in the Convention, meeting all conditions outlined in article 2 of the Convention, and also expanded the breadth of potential perpetrators.

Turning to the criminal responsibility of higher-ranking officers, if there was common agreement between perpetrators, all those involved in the crime of enforced disappearance were considered participants. Therefore, there was no need for separate criminalisation of higher-ranking officials.

About the case of a girl disappeared and raped by the armed forces in June 2020, alleged perpetrators had been brought to prosecution, and been charged. They were subject to disciplinary action. A case was pending before the regular courts. This case was not subject to military jurisdiction.

The Ombudsman Office paid constant attention to the family members of victims. It had organised virtual meetings in the context of the COVID-19 pandemic. The Ombudsman Office had also set an early warning system to better respond to cases of enforced disappearance, and provided training to its staff based on the principles enshrined in the Convention.

The police had a special unit tasked with preventing and investigating the enforced disappearances of children and adolescents. Delegates said the creation of this unit had led to significant positive outcomes.

The were no "macro" investigations or cases open with regards to the boys and girls recruited by the FARC-EP and other armed groups between 1989 and 2016, and who were still missing. The FARC had committed to providing the full truth and participating in investigations. There were six priority regions that had been identified for investigations into extrajudicial killings. There were 367 voluntary collaborators, including generals and other members of the military. Colombia was now moving towards a higher level of truth, delegates assured.

In that regard, they cited the example of the case of Las Mercedes cemetery. The Government, including the national forensic medicine institute, had spent four days exhuming the corpses of victims, despite the pandemic, based on the information provided by an individual who had taken part in enforced disappearances.

Victims could ask any questions regarding the legal proceedings undertaken by the Special Jurisdiction for Peace established in the country. In assessing theresponsibility of higher-ranking officials, the Government adopted a "pyramidal approach" akin to that established by the Rome Statute. Follow-up Questions by the Committee Experts JUAN JOSÉ LOPEZ, Committee Co-Rapporteur for Colombia, while acknowledging the commitment of Colombia to combatting enforced disappearances, said the Committee urged all States parties to recognise the competence of the Committee to receive and examine individual and inter-State communications. Enforced disappearances were not a matter of the past in Colombia; they were still taking place today.

The establishment of a specific crime for higher ranking officials, that is a separate criminalisation for higher ranking officials, would clarify the law, he added. He requested additional information about the June 2020 enforced disappearance and related rape case.

CARMEN ROSA VILLA, Committee Co-Rapporteur for Colombia, inquired about the approach and the role of the Office of the Attorney General in seeking truth and justice for victims. She also asked about the role of the Ministry of Defence, and how it related to that of the Special Jurisdiction on Peace.

Another Expert requested data on the number of minors who were victims of enforced disappearance.

Follow-up Replies by the Delegation The delegation said the Office of the Attorney General was examining the June 2020 enforced disappearance and rape. Additional information on this matter would be provided in writing.

The Office of the Attorney General was also setting in motion a comprehensive search programme in Comuna 13 in Medellin. More broadly, interim measures were being implemented to protect and preserve several places where bodies of disappeared people may be. There were also a number of macro investigations to identify macro patterns in enforced disappearances by examining, for instance, how this offence was linked to sexual crimes.

The names of 42,000 minors had been added to the national registrar for disappeared persons, and 56 per cent of them were still reported as missing.

Questions by the Committee Experts CARMEN ROSA VILLA, Committee Co-Rapporteur for Colombia, inquired about the number of minors disappeared under the strict definition of article 2 of the Convention. Referring to cases of disappearances carried out in places of deprivation of liberty, and the related inquiry by the Office of the Attorney General, including on cases where victims had been dismembered, she inquired about measures taken to address this issue. Turning to the national search plan, she asked if the 2007 version of this plan was still implemented in the context of the armed conflict, and inquired about regional plans.

Turning to the identification and dignified delivery of remains, the Co-Rapporteur asked the delegation to indicate the measures taken to ensure that campaigns to obtain genetic samples from relatives of disappeared persons were widely accessible, particularly in rural areas and in the context of COVID-19.

JUAN JOSÉ LOPEZ, Committee Co-Rapporteur for Colombia, said policies for reparations required reliable figures on the number of victims. And yet, the figures on the number of victims of enforced disappearance were not clear. Could the delegation confirm whether the 75,287 victims mentioned in paragraph 33 of the State party report was accurate and comment on the discrepancies with the 185,000 odd victims mentioned in the National Registry? On what basis did the Central Registrar distinguish between direct and indirect victims?

The Co-Rapporteur asked how data collection was coordinated between the Unit for Comprehensive Attention and Reparation to Victims (Unidad para la Atención y Reparación Integral a las Víctimas), which led the comprehensive programme of reparation measures and was part of the National System for Comprehensive Attention and Reparation for Victims (Sistema Nacional de Atención y Reparación Integral a las Víctimas ); the Single Registry of Victims, administered by the Unit for Comprehensive Attention and Reparation to Victims; the Comprehensive System of Truth, Justice, Reparation and Non-Repetition; the Office of the Attorney General; and the National Registry of Disappeared, to ensure that all victims of enforced disappearances obtained reparation.

Replies by the Delegation The delegation said the Attorney General's Office had cross-referenced all the data from all databases managed by Governmental entities, and established that there were 84,330 victims who were still disappeared. The remains of 7,732 individuals had been given to the families of the victims. There were about 10,499 child victims of enforced disappearances. The Attorney General's Office would work in each province to take enough genetic samples to identify the 4,935 victims of the armed conflict.

Regarding the case of a girl disappeared and raped by the armed forces in June 2020, defendants were currently held in pre-trial detention while awaiting a ruling by the court of second instance. They faced up to 30 years of imprisonment.

On the national search plan, delegates said the Government had set out a conceptual framework and established specific goals in that context. It had notably made progress with regards to the identification of victims.

As for the Committee's Guiding Principles on the Search for Missing Persons, they were taken into account in the Government's strategy for the search for missing persons, the delegation said. Twenty measures of protection had been passed, particularly for victims of alleged crimes involving members of law enforcement.

The discrepancy between the figures of the Office of the Attorney General and that of the National Registry on children could be explained by the fact that the

44,000 or so disappeared children reported by the National Registry included all children who had gone missing, whether it was as a result of an enforced disappearance, or in another context.

On the distinction between direct and indirect victims, delegates explained that direct victims were people who had actually been disappeared, subjected to enforced disappearance in the context of the armed conflict. Family members and other persons affected by the disappearance of someone were considered indirect victims.

There were several State institutions working on enforced disappearances with various competencies and mandates; it was not surprising therefore that they had different figures related to enforced disappearances.

All prosecutors and criminal police investigators had been trained to treat every presumed enforced disappearance as a priority and trigger the urgent response mechanism.

Concluding Remarks ADRIANA MEJÍA HERNÁNDEZ, Deputy Minister in charge of Multilateral Affairs at the Ministry of Foreign Affairs of Colombia, thanked the Committee Experts for their commitment and constructive approach. The State had come to the dialogue with the greatest readiness, as a country open to scrutiny. Colombia was committed to human rights, democracy and the rule of law. Colombia had taken due note of the concerns and points raised by the members of the Committee and reaffirmed that - notwithstanding the evident progress made since the beginning of this century - it would continue to make progress in strengthening national capacities to meet the challenges that persisted.

MOHAMMED AYAT, Committee Chairperson, thanked all those present for the exchange, despite the constraints related to the online format. All were keen to get back to dialogues with people present, he noted. Exchanges between States parties and the Committee should be seen as cooperation, as all had a role to play to ensure the implementation of the Convention.

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2021/04/en-colomb...

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