Keep on Investigating Until There is Clarification Jeremy J. Sarkin is the Chairperson of the United Nations Working Group on Enforced or Involuntary Disappearances; the civil society of Nepal had a meeting with Sarkin on 14 December, 2010 while he was here in Nepal for an informal visit. Various questions were asked of him by a number of people, on the issue of disappeared persons in Nepal during the meeting. The thoughts that he shared during the meeting has been edited and published by INFORMAL in the form of an interview. Especially, the colloquial expressions of his spoken text have been edited. The wording of the questions may not be exactly what was asked but high attention has been given so as to keep the intent of the questions the same. INFORMAL is grateful to all those who raised questions during the meeting.
The Supreme Court of Nepal issued an order on June 1, 2007 to form an all- powerful Commission on Disappearances. However, the Commission has not yet been formed.. About 458 cases of disappeared persons have been registered with the UN. What can we expect from the UN in this context?
Due to the fact that reporting is a major problem, we hope that there will be more cases over time. We have 458 cases but we are sure that there are more. We would like to see the 458 cases that are outstanding be resolved in January. States need to take steps, whatever steps they want to take is for them to decide, how much time, how much effort they have to spend is up to them but they must spend time and they must make efforts to resolve the problem. We are hopeful that the issues can be worked out over time; but it doesnt mean that every single case will be resolved. In many countries we see hundreds of cases being resolved. In some places, the whereabouts of the people have been discovered, so we are hopeful that that is true of every country. I am making general comments about countries; I am not making specific comments that Nepal has to take up. So, please dont report me as saying Nepal must do this and Nepal must do that because thats not what I have said.
What should be the procedure to investigate the whereabouts of the disappeared persons and to resolve the problem of disappearances? How should exhumations be carried out in the cases where the disappeared persons are already believed to have been killed?
There has to be a legal framework for disappearances in general. There has to be a law which prevents and eradicates disappearances. There has to be a framework for exhumations, for investigations, prosecutions and for a whole range of issues, including evidence. The last thing you do is to just exhume any body you find. You need to have a legal system which controls all those particular issues. It has to be ensured that evidence is protected. You can use the evidence in a court of law to ensure a successful prosecution. Thus, establishing a framework, a missing persons institution, training the forensic experts, getting outside assistance and a range of other institutions to help you are all the important parts in resolving the problem of disappearances.
The right to the truth is also a crucial part and all processes should thus have victim participation. If you dont have those people who were directly affected in whatever process you adopt, people wont accept that process. Therefore, it is important to consult, to absorb in, and to allow people to feel included. Otherwise people will reject the processes that they dont feel are theirs or those they belong to. With the enforced disappearances, the most important group of people is the families of the disappeared. They want to be involved in the process; they want to know, as I said, the right to truth. They want to know what happened and be involved all the way throughout the process. The right to the truth, as we have delineated what it says, means that families of victims are entitled to know throughout the process, they can not be told simply that an investigation is going on. They need to be given more specific information. There can be an exception where a criminal investigation is taking place and some evidence has to be withheld, but there ought to be a right for the victims to go along to court and say, I dont agree with the decision not to provide information, please independently arbitrate, the government did not provide me with sufficient information. Thus, the victims or their families role is crucial and should be capacitated to more.
What about the responsibility of the state regarding the disappearances that take place in the areas that were not under their control during the conflict?
If a country doesnt control a particular ethnic territory during the conflict itself, obviously, it cant control what happens on that piece of territory at that particular time. It doesnt mean that after the conflict is over it does not deal with those particular issues. So, if you have responsibilities, they exist not only at the time that the disappearance happened. Your responsibilities might come along at a time when you actually have the ability to do something about the investigation. So, the responsibility of the state does not start at a particular time and end at a particular time- it can start after the enforced disappearance happened or at another particular time. It is also possible, that a state has the responsibility for enforced disappearances perpetrated by other states. Or, if the perpetrator comes from another state and actively enforces disappearances in a particular state, enforced disappearances in terms of a states responsibilities can change. The state has responsibility but, obviously, if it doesnt control a piece of its territory then it couldnt be held responsible for not dealing with those particular enforced disappearances but it has to do what it can. If it can carry out an investigation and work with other forces on this territory to deal with those particular issues, then that would be helpful in terms of dealing with those important issues.
How is a particular disappeared person’s case supposed to have been resolved?
Each country must decide what it does in relation to its own particular issues but, in terms of the way we work, we say that it can be resolved in two ways. If a person is alive, we would accept that. If the Government comes along and says we hold the person in detention then we would say that the family must be able to check that person is actually there. Thats in terms of the person being alive. In terms of the person no longer being alive, we want the death certificates from the Government, then we send the death certificates to the families and they have to say whether they agree or not that the person is dead. If the families come along and disagree that the persons are dead we can sometimes say we will not accept the death certificates issued by the Government. Normally, we accept death certificates only if the family has a very good reasons to accept death. Sometimes the family will come along and say they dont want the case to continue and we will seek to close the case, not clarify the case. Sometimes there can be a discontinuation depending on particular circumstances but we say, as I said earlier, it has to be investigated until there is clarification. The country cant come along after 25 years and say we can not find information. We say keep on investigating.
The Government of Nepal did not do anything for the disappeared persons. What can the families of the disappeared persons expect from the UN?
I am going to talk generally about what we do in the general sense. Many people expect many things from the Working Group but the Working Group has very limited capacity. We only have two staff members for the whole world. Two staff members and we dont carry out investigations. We dont have investigators, police officers or army personnel. We dont have any resources. We cant go to countries and investigate. We do visit. We have a letterbox and people, Governments and family members send us information. We work with the government and issue reports. General allegations are there as to different countries disappearances. We tell the governments about the allegations, ask them for their comments and publish, in our annual report, all the general allegations that weve collected. Where family members or NGOs are being harassed or intimidated, we send letters to the Governments there asking them to stop doing that. Dont overestimate what we can do. Certainly, we visit the countries on which we write reports and make recommendations. We visited Nepal before and made recommendations. We want to follow up to see how those recommendations have been taken up and where those issues are. We would like to come back.