Enforced disappearance
An enforced disappearance is the secret abduction or imprisonment of a person with the support or acquiescence of a state followed by a refusal to acknowledge the person's fate or whereabouts with the intent of placing the victim outside the protection of the law. Often, forced disappearance implies murder whereby a victim is abducted, may be illegally detained, and is often tortured during interrogation, ultimately killed, and the body disposed of secretly. The party committing the murder has plausible deniability as there is no evidence of the victim's death.
Enforced disappearance was first recognized as a human rights issue in the 1970s as a result of its use by military dictatorships in Latin America during the Dirty War. However, it has occurred all over the world.
According to the Rome Statute of the International Criminal Court, which came into force on 1 July 2002, when committed as part of a widespread or systematic attack directed at any civilian population, enforced disappearance qualifies as a crime against humanity, not subject to a statute of limitations, in international criminal law. On 20 December 2006, the United Nations General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance.
Human rights law
In international human rights law, disappearances at the hands of the state has been labelled as "enforced" or "forced disappearances" since the Vienna Declaration and Program of Action. For example, the practice is specifically addressed by the OAS's Inter-American Convention on Forced Disappearance of Persons. There is also evidence that enforced disappearances occur systematically during armed conflict, such as Nazi Germany's Night and Fog program, which constitutes war crimes.In February 1980, the United Nations established the Working Group on Enforced or Involuntary Disappearances, "the first United Nations human rights thematic mechanism to be established with a universal mandate." Its main task "is to assist families in determining the fate or whereabouts of their family members who have reportedly disappeared." In August 2014, the working group reported 43,250 unresolved cases of disappearances in 88 different states.
The International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly on 20 December 2006, states that the widespread or systematic practice of enforced disappearances constitutes a crime against humanity. It gives victims' families the right to seek reparations and to demand the truth about the disappearance of their loved ones. The convention provides the right not to be subjected to enforced disappearance, as well as the right for the relatives of the disappeared person to know the truth and ultimate fate of the disappeared person.
The convention contains several provisions concerning the prevention, investigation, and sanctioning of this crime. It also contains provisions about the rights of victims and their relatives, and the wrongful removal of children born during their captivity. The convention further sets forth the obligation of international cooperation, both in the suppression of the practice and in dealing with humanitarian aspects related to the crime.
The convention establishes a Committee on Enforced Disappearances, which will be charged with important and innovative functions of monitoring and protection at an international level. Currently, an international campaign called the International Coalition against Enforced Disappearances is working towards universal ratification of the convention.
Disappearances work on two levels: not only do they silence opponents and critics who have disappeared, but they also create uncertainty and fear in the wider community, silencing others they think would oppose and criticize. Disappearances entail the violation of many fundamental human rights declared in the United Nations Universal Declaration of Human Rights. For the disappeared person, these include the right to liberty, the right to personal security and humane treatment, the right to a fair trial, to legal counsel and to equal protection under the law, and the right of presumption of innocence. Their families, who often spend the rest of their lives searching for information on the disappeared, are also victims.
International criminal law
According to the Rome Statute establishing the International Criminal Court, enforced disappearances constitute a crime against humanity when committed as a part of a widespread or systematic attack directed against any civilian population with the knowledge of the attack. The Rome Statute defines enforced disappearances differently than international human rights law:History of the legal development and international jurisprudence
General background
The crime of forced disappearance begins with the history of the rights stated in the Declaration of the Rights of Man and of the Citizen, formulated on 26 August 1789, in France by the authorities that emerged from the French Revolution, where it was already stated in Articles 7 and 12:Art. 7. No person may be charged, detained, or imprisoned except in cases determined by the law and in the manner prescribed therein. Those requesting, facilitating, executing, or executing arbitrary orders must be punished...
Art. 12. The guarantee of the rights of man and of the citizen needs a public force. This force is therefore instituted for the benefit of all, and not for the particular utility of those who are in charge of it.
Throughout the nineteenth century, along with the technological advancements applied to wars that led to increased mortality among combatants and damage to civilian populations, movements for humanitarian awareness in Western societies resulted in the founding of the first humanitarian organizations known as the Red Cross in 1859, and the first international typification of abuses and crimes in the form of the 1864 Geneva Convention. In 1946, after the Second World War, the Nuremberg trials brought to public attention to the Nacht und Nebel decree, one of the most prominent antecedents of the crime of enforced disappearance. The trials included the testimony of 20 of those persons considered a threat to the security of Nazi Germany and whom the regime detained and condemned to death in the occupied territories of Europe. However, the executions were not carried out immediately; at one time, the people were deported to Germany and imprisoned at locations such as the Natzweiler-Struthof concentration camp, where they ended up disappearing and no information about their whereabouts and fate was given as per point III of the decree:
III. …In case German or foreign authorities inquire about such prisoners, they are to be told that they were arrested, but that the proceedings do not allow any further information.
German Field Marshal Wilhelm Keitel was condemned in connection with his role in the application of the "NN decree" by Adolf Hitler, although, as it had not been accepted at the time that enforced disappearances were crimes against humanity, the International Criminal Tribunal in Nuremberg found him guilty of war crimes.
Since 1974, the Inter-American Commission on Human Rights and the United Nations Commission on Human Rights have been the first international human rights bodies to react to the phenomenon of disappearances, following complaints made in connection with the Chilean military coup of September 11, 1973. The report of the Working Group to Investigate the Situation of Human Rights in that country, which was submitted to the United Nations Commission on 4 February 1976, illustrated such a case for the first time, when Alfonso Chanfreau, of French origin, was arrested in July 1974 at his home in Santiago de Chile.
Earlier, in February 1975, the United Nations Commission on Human Rights had used the terms "persons unaccounted for" or "persons whose disappearance was not justified," in a resolution that dealt with the disappearances in Cyprus as a result of the armed conflict that resulted in the division of the island, as part of the two General Assembly resolutions adopted in December 1975 with respect to Cyprus and Chile.
1977 and 1979 resolutions
In 1977, the General Assembly of the United Nations again discussed disappearances in its resolution 32/118. By then, the Nobel Prize winner Adolfo Pérez Esquivel had made an international appeal that, with the support of the French government, obtained the response of the General Assembly in the form of resolution 33/173 of 20 December 1978, which specifically referred to "missing persons" and requested the Commission on Human Rights to make appropriate recommendations.On 6 March 1979, the Commission authorized the appointment as experts of Dr. Felix Ermacora and Waleed M. Sadi, who later resigned due to political pressure, to study the question of the fate of disappearances in Chile, issuing a report to the General Assembly on 21 November 1979. Felix Ermacora's report became a reference point on the legal issue of crime by including a series of conclusions and recommendations which were later collected by international organizations and bodies.
Meanwhile, during the same year, the General Assembly of the Organization of American States adopted a resolution on Chile on 31 October, in which it declared that the practice of disappearances was "an affront to the conscience of the hemisphere", after having sent in September a mission of the Inter-American Commission to Argentina, which confirmed the systematic practice of enforced disappearances by successive military juntas. Despite the exhortations of non-governmental organizations and family organizations of the victims, in the same resolution of 31 October 1979, the General Assembly of the OAS issued a statement, after receiving pressure from the Argentine government, in which only the states in which persons had disappeared were urged to refrain from enacting or enforcing laws that might hinder the investigation of such disappearances.
Shortly after the report by Félix Ermacora, the United Nations Commission on Human Rights considered one of the proposals made and decided on 29 February 1980 to set up the Working Group on Enforced or Involuntary Disappearances, the first of the so-called thematic mechanisms of the commission and the most important body of the United Nations that has since been dealing with the problem of disappearances in cases that can be attributed to governments, as well as issuing recommendations to the commission and governments on the improvement of the protection afforded to miss persons and their families and to prevent cases of enforced disappearance. Since then, different causes began to be developed in various international legal bodies, whose sentences served to establish a specific jurisprudence on enforced disappearance.