COMMITTEE ON ENFORCED DISAPPEARANCES CONSIDERS REPORT OF GABON
The Committee on Enforced Disappearances today concluded its consideration of the initial report of Gabon on its implementation of the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance.
Introducing the report, Marianne Odette Bibalou Bounda, Permanent Representative of Gabon to the United Nations Office at Geneva, said that Gabon was taking steps to align its legislation with the provisions of the Convention which it had ratified in 2011. Enforced disappearance was recognized as a crime against humanity in the law on cooperation with the International Criminal Court, which provided for the gradual incorporation in the national legislation of the provisions of the Rome Statute. The reform of the criminal law was underway, which would see the specific recognition of enforced disappearance as a stand-alone crime, and the application of the statute of limitation of 20 years.
Committee Experts commended Gabon for being among the first States to have acceded to the Convention in 2011, and expressed disappointment at the lack of substantial replies to the questions raised in the dialogue. They reminded Gabon of its duties and responsibilities as a State party, including to provide clear and tangible information on the reforms undertaken since the ratification, on the post-electoral violence, and on action taken to ensure justice. Gabon was asked about the status of the national Human Rights Commission. It was urged to ensure the commitment and resources for the establishment of the national torture preventive mechanism, which was crucial to preventing enforced disappearances as well. Experts were concerned about the post-electoral events in August 2016 and the serious allegations by non-governmental organizations of arbitrary arrests, killings, and enforced disappearances that had occurred. What action was taken to investigate the allegations of hundreds of bodies allegedly recently found in four mass graves in Libreville, and to bring to justice those responsible?
In his concluding remarks, Emmanuel Decaux, Committee Rapporteur for Gabon, urged the country to establish a dossier on the credible allegations that the Committee had received from respected organizations, rather than just outright deny them. The Committee was concerned about the right to truth and justice, the lack of guarantees that there were no places of secret detention, and the military court competences.
Daniel Figallo Rivadeneyra, Committee Co-Rapporteur for Gabon, concluded by saying that the pending responses from Gabon could be a starting point for a renewed momentum in the joint effort to implement the Convention in this country.
In her closing statement, Ms. Bibalou Bounda said that the new Government that had just been formed had found it difficult to send a delegation to this constructive dialogue. She reiterated the commitment of Gabon to continue working with the Committee and focus on prevention.
The delegation of Gabon was composed of representatives of the Permanent Mission of Gabon to the United Nations Office at Geneva.
Live webcast of the Committee’s public meetings is available at http://webtv.un.org/
The Committee’s next public meeting will be on Wednesday, 13 September at 3 p.m., when it will hold a meeting with States parties to the International Convention on the Protection of All Persons from Enforced Disappearance; with United Nations bodies, specialized agencies and intergovernmental organizations; with national human rights institutions; and with non-governmental organizations and civil society.
Report
The initial report of Gabon can be read here: CED/C/GAB/1.
Presentation of the Report
MARIANNE ODETTE BIBALOU BOUNDA, Permanent Representative of Gabon to the United Nations Office at Geneva, introducing the report, said that pursuant to the ratification of the Convention in 2011, Gabon had taken steps to align its legislation with the treaty’s provisions, as outlined in Gabon’s initial report. This report had been prepared in cooperation with national partners, and in particular during the national validation session in which more than 20 organizations had participated. Enforced disappearance was an illegal act which was recognized as a crime against humanity in international law.
Gabonese law did not consider an act of enforced disappearance as a separate crime, and it also did not contain a strict definition of enforced disappearances as proposed by the Convention. Nevertheless, Gabon subscribed to the principles and the spirit of the Convention and considered enforced disappearance to be a crime of a very serious nature, punished by the Code of Criminal Procedure. This law severely sanctioned all those who committed acts of enforced disappearances and those who ordered enforced disappearances. Enforced disappearance was recognized as a crime against humanity in the law on cooperation with the International Criminal Court, which had also provided for the gradual incorporation in the national legislation of the provisions of the Rome Statute, which Gabon had ratified in 2000.
The reform of the criminal law was underway, said Ms. Bibalou Bunda, which would see the specific recognition of enforced disappearance as a stand-alone crime, and the application of the statute of limitation of 20 years. Enforced disappearance was not a reality in Gabon, and no criminal procedure under the article of the law on this crime had started in the country, including in reference to the period of post-electoral troubles in 2016, said Ms. Bibalou Bunda. Only three of those arrested during the post-electoral troubles, charged with pillaging, remained in pre-trial detention today. The criminal code removed the protection of the law of those officers of the State, or of persons acting under the authorisation of the State, who unlawfully arrested, detained or otherwise deprived of liberty other persons.
Questions by the Committee Experts
EMMANUEL DECAUX, Committee Expert and Rapporteur for Gabon, commended Gabon for being among the first States that had acceded to the Convention in 2011.
The creation of a national human rights institution had been in the pipeline for a long time, since 2005 – what was the current timeline for its establishment and how would Gabon ensure its accreditation with status A under the Paris Principles?
What was the intention of the State party concerning the recognition of the competence of the Committee to receive individual communications, as it had already done with several other human rights treaty bodies, including the Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child?
Another reform still in the pipeline was the establishment of a national torture preventive mechanism – what was the current status of this initiative?
Gabon had submitted its report in 2015, but a lot had happened since, in particular the post-electoral violence in August 2016, during which cases of arrests, killings, and enforced disappearances took place, as had been reported by several international and non-governmental organizations.
Recently, at least four mass graves had been discovered in Libreville, in which hundreds of bodies were located. Had those cases been brought before the courts? Who were the people in the mass graves, were they victims of enforced disappearances?
The delegation mentioned that the reform of the criminal code was ongoing, which would ensure the criminalization of enforced disappearance. How would this reform fulfil the complex requirements of the Convention concerning the criminalization of enforced disappearance, which required that enforced disappearance be seen both as a stand-alone crime as defined in article 2, and also as a crime against humanity when committed systematically and on a mass-scale? How could the Committee help Gabon fulfil this obligation?
It might be useful to think which scope could be given to article 3 which spoke of non-State actors, and to provide a more robust criminalization of trafficking in persons by including enforced disappearances there.
Further, Gabon needed to think about putting in place a judicial regime and a sanctions regime which would ensure that sentences were proportionate to the seriousness of the crime.
Individual responsibility could take several forms, as stated in article 6, which defined responsibility for enforced disappearances not only for the perpetrators of the act but for their superiors as well, and also set out criminal responsibility for complicity and for failure to prevent enforced disappearances, including through neglect. The responsibility of superiors and commanders was even greater. How did Gabon deal with this aspect in its legislation and did it have a clear list of aggravating and mitigating circumstances in the commission of the crime?
DANIEL FIGALLO RIVADENEYRA, Committee Expert and Co-Rapporteur for Gabon, regretted the absence of the full delegation of Gabon, which would adversely impact the interactive nature of this constructive dialogue.
What were the situations inscribed in the Constitution in which human rights and fundamental freedoms could be limited? What parts of the law spoke of the absolute prohibition of enforced disappearances, regardless of the exceptional situations in which the country found itself, including a state of war, a state of emergency, and other such situations?
How were the constitutive elements of the crime of enforced disappearances as a crime against humanity defined, in accordance with the applicable international law? Which aggravating and mitigating circumstances were established by the State in connection with this crime?
The Criminal Code prohibited placing or receiving a person in bondage – how was this act linked to the crime of trafficking in persons and what were the maximum and minimum sentences it carried?
What sentences were prescribed for acts of enforced disappearances in which torture or the death of a person were involved, and also if the act was committed by a person in uniform?
The delegation was asked to explain the process in place to investigate all cases or allegations of enforced disappearances and to establish the fate of disappeared persons.
How did the law guarantee the protection of a victim of enforced disappearances or his or her lawyer during the investigation of enforced disappearances?
Finally, the delegation was asked to explain the laws and procedures governing extradition, and to reassure the Committee that no extradition was driven by political motivations.
Response by the Delegation
In response to the questions raised by the Experts, the delegation said that the Human Rights Commission had been set up in 2006 with the mission to promote and protect human rights in Gabon. The Commission was directed by 12 members from different fields. The authorities were working to ensure it functioned in line with the Paris Principles.
Gabon had ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2010 and had already taken steps to establish the national torture preventive mechanism and would be able to deal with this issue in a more substantive manner in the near future.
With regard to the questions raised about the post-electoral events, Gabon regretted these very painful and unprecedented events in the national history. It was regrettable that one year after those unfortunate events, Gabon was still brought to book and had to come back to this issue. The Head of the State and the whole population had taken steps to strengthen cohesion and national unity in the country, which had always lived in peace.
Gabon had invited the International Criminal Court to the country; it had recently arrived and the authorities were awaiting the results of its preliminary investigation. The delegation preferred to wait for this report before discussing the casualties and deaths, and reiterated the will of the population to continue to live in peace.
The reform of the Criminal Code aimed to ensure the inclusion of the crime of enforced disappearances both as a stand-alone crime and as a crime against humanity and Gabon was looking forward to receiving the Committee’s assistance in this regard.
A bill of law concerning the criminalization of trafficking in persons was currently in parliament.
A military court system was in place, and its designated head was the Vice President of the Tribunal de Grande Instance.
Questions by the Committee Experts
EMMANUEL DECAUX, Committee Expert and Rapporteur for Gabon, took positive note of the establishment of the Human Rights Commission and noted that the report of Gabon spoke about a workshop in 2013 to relaunch the Commission, and another shake-up in 2016, which indicated that the body actually did not function properly.
There was a need for Gabon to increase resources allocated for the establishment of the national torture preventive mechanism.
The protection of everyone from enforced disappearances was provided by the general provisions for the protection of human rights, but also by the criminal laws and by the rule of law. Another mechanism was the early warning and prevention mechanism of the Committee itself, which could be easily and quickly triggered.
The right to truth started with an effective investigation of all cases of enforced disappearances, finding the bodies and returning them to the families, stressed the Rapporteur.
Response by the Delegation
MARIANNE ODETTE BIBALOU BOUNDA, Permanent Representative of Gabon to the United Nations Office at Geneva, said that talking about enforced disappearances in Gabon was really a question of prevention as so far there were no official reports of enforced disappearances in the country.
The Law 15 of 2006 on the national Human Rights Commission had been found to be imperfect and the Commission was now reviewing its founding text, with the support of the State, including through organizing a roundtable on the issue and numerous advocacy activities. This had given rise to the new text on the Human Rights Commission, which was now in the Senate for its forthcoming adoption. This also meant that the Commission’s procedures were now in accordance with the Paris Principles.
Enforced disappearance was a new issue in Gabon and no case had been registered so far.
With regard to extradition, Ms. Bibalou Bounda said that Gabon had not received any request for extradition in relation to enforced disappearances. If such a request was received, Gabon would apply the relevant articles of the Rome Statute and the Code of Criminal Procedure.
The newly reformed Criminal Code would set a statute of limitations of 20 years on the crime of enforced disappearances and on crimes against humanity, and Gabon would need technical assistance from the Committee in preparing this reform.
The phenomenon of trafficking in persons was imported in Gabon, said Ms. Bibalou Bounda and informed the Committee that a draft law criminalizing this phenomenon was currently before parliament.
The law provided for individual criminal responsibility as well as for collective criminal responsibility, criminal responsibility of superiors, and for the complicity in crimes against humanity.
There were restrictions on the state of emergency, which could be declared in case of a threat to national security for example; it was declared after the deliberation of the Council of Ministers in agreement with the Senate and it did not allow any State officer to commit the crime of enforced disappearance.
Questions by the Committee Experts
EMMANUEL DECAUX, Committee Expert and Rapporteur for Gabon, expressed disappointment at the lack of written replies provided by Gabon prior to this dialogue, as well as the insufficient information on laws and the legal framework provided during the dialogue. It seemed that Gabon was burying its head in the sand.
Gabon had ratified the Convention in 2011 and had duties in this respect, including to inform the Committee on the reforms undertaken since, on the post-electoral violence and events, and on action taken to ensure justice. Thus, the Committee was waiting for very concrete and tangible responses.
The International Criminal Court investigation in Gabon was a very serious issue, said Mr. Decaux, and noted that the implementation of the Convention was a much broader question that went beyond cooperation with the International Criminal Court and included prevention, early warning, and others.
No one knew how many people had been killed in the post-electoral violence, and there were reports of mass graves, people stuffed in containers, and bodies thrown into the sea. Those serious allegations must be investigated.
Gabon should look into the overall coherence with the Convention, and a range of legal guarantees such as the prohibition of secret detention, the fundamental rights such as access to a lawyer while in custody, and overall, access to justice. Information must be provided on the fate of those who had been detained.
DANIEL FIGALLO RIVADENEYRA, Committee Expert and Co-Rapporteur for Gabon, lamented that no substantial replies had been provided on the questions asked by the Committee Experts. One such question was what constituted a crime against humanity and how it tied to the Rome Statute.
What was being done to identify and search for children separated or abducted from their families, and to reunite them: what laws, policies and protocols were in place?
Although the delegation claimed that trafficking in persons was an imported phenomenon, strong protective and preventive measures should be put in place, including laws, policies, and trained police and judicial personnel.
Other Experts reiterated the interest of the Committee in receiving complete and full responses to the questions raised, particularly to those of a technical nature, and urged Gabon to turn this dialogue, despite the absence of the delegation from the capital, into an improvement of the implementation of the Convention.
Response by the Delegation
MARIANNE ODETTE BIBALOU BOUNDA, Permanent Representative of Gabon to the United Nations Office at Geneva, agreed that Gabon had the obligation to share with the Committee information concerning the progress made since the ratification of the Convention in 2011 and about the post-electoral events in 2016. Gabon was committed to cooperating with the Committee.
The allegations of enforced disappearances were not based on facts, said the Ambassador, and recalled that the referral to the International Criminal Court had been decided by the highest authorities in the country with the aim of shedding light on those unfortunate events in 2016. It was now a matter of waiting for the Court’s final findings. Officially, there were no records of enforced disappearances in Gabon.
Ms. Bibalou Bounda reassured the Committee that all the questions they had raised would be passed on to the technical experts in the country and that Gabon would do its utmost to provide answers within the timeframe set by the Committee.
Trafficking in persons was not part of the customs in the country, and the Government was not aware of trafficking in the country. A law against trafficking in children was in place, while parliament was debating a draft law against human trafficking.
Concluding Remarks
SUELA JANINA, Acting Committee Chairperson, said that Gabon could provide written answers within 48 hours after the end of the dialogue.
EMMANUEL DECAUX, Committee Expert and Rapporteur for Gabon, said that the Committee would assist Gabon in the implementation of the International Convention for the Protection of All Persons from Enforced Disappearances. It was important to establish a dossier concerning the credible allegations that the Committee had received from respected organizations, rather than just outright denying them. The International Criminal Court had the mandate for war crimes and crimes against humanity, while the crimes envisaged under the Convention were broader, and included also reparation and remedy. Thus, the referral to the International Criminal Court did not suspend the application of the Convention. The Committee was concerned about the right to truth and justice, the lack of guarantees that there were no places of secret detention, and the military court competences.
DANIEL FIGALLO RIVADENEYRA, Committee Expert and Co-Rapporteur for Gabon, recalled that the Convention confirmed the right of everyone not to suffer enforced disappearance at any time and required each State party to adopt preventive and punitive measures to ensure the enjoyment of that right. The responses that the Committee was awaiting from Gabon could be a starting point for a renewed momentum in the joint effort to implement the Convention in this country.
MARIANNE ODETTE BIBALOU BOUNDA, Permanent Representative of Gabon to the United Nations Office at Geneva, said that, for a number of reasons, the new Government that had just been formed had found it difficult to send a delegation to this constructive dialogue. Notwithstanding, Gabon remained committed to working with the Committee and focus on prevention.
For use of the information media; not an official record
CED/17/11E