“The phenomenon of enforced disappearances […] is the worst of all violations of human rights. It is certainly a challenge to the very concept of human rights, denial of the right for humans to have an existence, an identity. Enforced disappearance transforms humans into non-beings. It is the ultimate corruption, abuse of power that allows those responsible to transform law and order into something ridiculous and to commit heinous crimes.”
Niall MacDermot, Secretary General of the International Commission of Jurists (1970-1990)
Introduction
“Enforced disappearance” is one of the worst violations of human rights. A “disappeared” person is entirely at the mercy of his or her captors, with no access to legal protection.
The family and friends of a disappeared person endure tremendous suffering not knowing whether the disappeared person is alive or deceased, or whether they will ever know their fate or whereabouts.
Usually victims are apprehended at home or ‘grabbed’ from the street, sometimes in broad daylight, and taken to an unknown location. They are frequently tortured and face the constant fear of being killed.
Enforced disappearances are characterized by:
- the suddenness of their occurrence – without warning;
- the presence of state officials (or someone acting with state consent);
- the absence of legal authority such as an arrest warrant; and
- often the use of force.
Although there is no ‘typical’ response from a state’s authorities, it is common for law enforcement officers to simply deny any knowledge of the matter or in some cases, the very existence of the victim.
The Convention on Enforced Disappearance
Following a three-year negotiation process in which 70 States, as well as numerous NGOs, associations of families of the disappeared and experts participated, the International Convention for the Protection of All Persons from Enforced Disappearance (CPED) was finally adopted by the General Assembly in December 2006.
Since then, as of 1 February 2016, 51 countries have ratified the CPED, which means they have confirmed that they consent to be bound by the treaty.
Under international law, when a state has signed a treaty, subject to later ratification, the state has an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty. A signature expresses the willingness of the signatory state to continue the treaty-making process.
This means that if a state has signed but not yet ratified the CPED, it has an obligation to refrain from acts that would defeat the object and purpose of the CPED.
Key Provisions of the Treaty
Definition
The CPED defines “enforced disappearance” as:
the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
Key obligations
The CPED places a number of obligations on states including:
a) not to subject anyone to enforced disappearance at any time, even in exceptional circumstances (article 1).
b) investigate cases of enforced disappearance committed by persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice (article 3).
c) ensure that enforced disappearance constitutes an offence under its criminal law (article 4).
d) make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness (article 7).
e) when placing a statute of limitation on enforced disappearance, ensure that it is of long duration and proportionate to the offence and commences from the moment when the enforced disappearance ceases taking into account its continuing nature (article 8).
This means a state cannot say the disappearance took place so long ago that it is not obliged to investigate; the crime continues to be committed as long as the whereabouts or fate of the person who has disappeared remain concealed. As such, the burden on the state to investigate the case is extremely heavy.
f) ensure that any individual who alleges that a person has been subjected to enforced disappearance has the right to report the facts to the competent authorities (article 12).
g) examine the allegation promptly and impartially and, where necessary, undertake without delay a thorough and impartial investigation (article 12).
h) ensure that the complainant, witnesses, relatives of the disappeared person and their defence counsel, as well as persons participating in the investigation, are protected against all ill-treatment or intimidation as a consequence of the complaint or any evidence given (article 12).
i) ensure the authorities conducting the investigation have the necessary powers and resources to conduct the investigation effectively, including access to the documentation and other information relevant to their investigation (article 12)
j) ensure that persons suspected of having committed an offence of enforced disappearance is not in a position to influence the progress of an investigation by means of pressure or acts of intimidation or reprisal aimed at the complainant, witnesses, relatives of the disappeared person or their defence counsel, or at persons participating in the investigation (article 12).
k) not to hold persons in secret detention and ensure that any person deprived of liberty is held solely in officially recognized and supervised places of deprivation of liberty with full access to their fair trial rights (article 17).
Rights of victims
One the major innovations of the CPED is article 24, which defines a “victim” broadly as the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance – and sets out a framework of the rights of victims including the rights to:
a) know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person; and
b) obtain reparation and prompt, fair and adequate compensation.
International crime
Article 5 of the CPED states that the widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.
Therefore when an enforced disappearance is committed as part of a widespread or systematic attack directed against any civilian population, the person alleged to be responsible may incur individual criminal responsibility at an international tribunal such as the International Criminal Court.
Enforced disappearance constitutes violations of different rights
Enforced disappearance constitutes a violation of a number of human rights including of the rights to security of the person, to the protection of the law, to not be arbitrarily detained of liberty, to legal personality of every human being, and to not be subject to torture or other cruel inhuman or degrading treatment as well as posing a grave threat to the right to life.
This means that even if a state has not signed or ratified the CPED, they still have certain duties with respect to the crime under customary international law and other treaties to which they are a state party such as the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Working Group on Enforced Disappearances
At the United Nations (UN) level, the Working Group on Enforced Disappearances was set up in 1980 and its mandate has been regularly renewed in order to continue its primary task of ‘assisting families in determining the fate or whereabouts of their family members who are reportedly disappeared’. In this way, families of victims can use the weight of an international organization as leverage to communicate with the Government concerned.
The Working Group accepts cases from any country in the world and it is not necessary to ‘exhaust domestic remedies’ (i.e. a victim or the family need not proceed through a state’s domestic apparatus before accessing international human rights mechanisms).
As of 2014, the UN has been actively considering 43,250 cases of enforced disappearance in 88 countries.
Further reading:
- The text of the International Convention for the Protection of All Persons from Enforced Disappearance:
http://www.ohchr.org/EN/ProfessionalInterest/Pages/IntConventionEnforcedDisappearance.aspx
- The official page of the Working Group on Enforced Disappearances:
http://www.ohchr.org/EN/Issues/Disappearances/Pages/DisappearancesIndex.aspx
- The status of ratifications of the CPED:
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-16&chapter=4&lang=en
- Practitioners Guide No. 9 of the International Commission of Jurists, Enforced Disappearance and Extrajudicial Execution: Investigation and Sanction: