Enforced disappearances: scope and case law

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 SCOPE AND STATUS OF THE RIGHT

Before the adoption of the 1992 United Nations Declaration on the Protection of All Persons from Enforced Disappearances, there existed no provision in an international human rights instrument explicitly addressing this phenomenon. The Declaration which is not legally binding, does not define the crime of disappearance but contains a working description in its third preambular paragraph and identifies in its first article four human rights that are generally violated by any act of enforced disappearance. Article 1.2 states that any act of enforced disappearance places the persons subjected thereto outside the protection of the law and constitutes a violation of a number of human rights, such as the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment.

The Declaration contains a variety of State obligations to take preventive action, to investigate any act of enforced disappearance and to bring the perpetrators to justice. Most important is the obligation in article 4 to make all acts of enforced disappearance criminal offences under domestic law with appropriate penalties which shall take into account their extreme seriousness.

According to Article 17, these acts shall be considered as continuing offences as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remain unclarified (art. 17).

However, the declaration does not refer specifically to any possible infringement of rights on behalf of the relatives of the disappeared but at is at the same time not limited to the enumerated rights. Further, it does not establish the principle of universal jurisdiction.

The 1994 Inter-American Convention on Forced Disappearances of Persons was the first legally binding instrument in this field. In article II it provides a legal definition of forced disappearance which closely follows the working definition of the Working Group on Enforced or Involuntary Disappearances. The Convention reaffirms that the systematic practice of forced disappearances "constitutes a crime against humanity" and establishes in its Article IV universal jurisdiction and obliges States Parties to take measures to enact the crime of forced disappearance as defined in article II in its criminal legislation. In addition, the Convention, like the Declaration, contains a number of State obligations to prevent enforced disappearance, to investigate the crime, to trace disappeared persons and to bring the perpetrators to justice.

Thus, enforced disappearance is a very complex and cumulative violation of human rights and humanitarian law which involves violations of the right to personal liberty and security, the right to recognition as a person before the law and the right not to be subjected to inhuman and degrading treatment and at least a grave threat to the right to life. In addition, the disappeared person, by being intentionally removed from the protection of the law, is also deprived of other human rights, including the right to an effective remedy before a domestic authority and to the protection of family life.

According to the working definition of the Working Group on Enforced or Involuntary Disappearances, which was by and large adopted in the United Nations Declaration and the Inter-American Convention, any act of enforced disappearance contains at least the following three constitutive elements:
(a) Deprivation of liberty against the will of the person concerned;
(b) Involvement of government officials, at least indirectly by acquiescence;
(c) Refusal to acknowledge the detention and to disclose the fate and whereabouts of
the person concerned.

Amnesty International considers that a 'disappearance' has occurred "whenever there are reasonable grounds to believe that a person has been taken into custody by the authorities or their agents and the authorities deny that the victim is in custody, thus concealing his or her whereabouts and fate."

The closest he has been able "to come to a definition is one that would essentially track the Declaration's 'working description', culminating with a clause to the effect that the acts have been committed 'with the intention of removing such persons indefinitely from the protection of the law' ". (intentionality and indefiniteness).

Further, International law considers such "disappearances" to be continuing crimes as long as the fate of the "disappeared" remains hidden. The U.N. Declaration on the Protection of all Persons from Enforced Disappearance adopted in General Assembly resolution 47/133 of 18 December 1992 states that "Acts constituting enforced disappearance shall be considered a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remain unclarified." This approach is also confirmed in the case law.

What rights are violated by the phenomenon?

- The Right to life:

Art. 1.2 of the UN Declaration on Disappearances names the right to life as one of the rights violated by an enforced disappearance. In the General Comment 6(16), 1982, on the right to life (art.6), in para. 4 the Human Rights Committee emphasises the fact that states should take effective measures to prevent the disappearance of individuals. Referring to it as 'something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life.' Moreover, states should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances that might involve a violation of the right to life.

- The Right to freedom from torture and ill-treatment:

Moreover, "disappearances" are a form of torture as regards the relatives of the "disappeared" person and potentially as regards the "disappeared person." See: U.N. Declaration on Enforced Disappearances (Art. 1): "Any act of enforced disappearance...constitutes a violation of the rules of international law guaranteeing, inter alia...the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment." The U.N. Human Rights Committee, has taken several decisions on individual petitions which indicate that "disappearances" amount to torture. See: Quinteros v Uruguay, (107/1981, para.14); also El-Megreisi v Libya (Report of the Human Rights Committee, Vol.II, GAOR, 49th Session, Supplement 40 (1994) , Annex IX T, paras 2.1-2.5); Mojica v. Dominican Republic (449/1991, para 5.7). See also European Court of Human Rights (Kurt v. Turkey, Eur.Ct.Hum.Rts, Case No.15/1997/799/1002, 25 May 1998, para.134); The Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment of July 29, 1988. Series C Nº 4, para.187).

According to the Working Group on Enforced Disappearances, a "disappearance itself constitutes ipso facto torture or other prohibited ill-treatment. "The very fact of being detained as a disappeared person, isolated from one's family for a long period is certainly a violation of the right to humane conditions of detention and has been represented to the Group as torture (see UN doc. E/CN.4/1983/14, para 131).

- The Right to Liberty and Security of Person:

This right is the one that is most obviously violated however it is not the best way to go on for this right since it is derogable in times of emergency. Art.1.2 of the UN Declaration on Disappearances identifies this right among the rules of International Law violated by an act of disappearance. The Working Group on Enforced Disappearances considers that this is the principal right denied by the very fact of enforced or involuntary disappearance.

Legal consequences of "disappearances":

A. State Responsibility:

To the extent that the practice of 'disappearances' may amount to torture or arbitrary deprivation of life, the consequence of establishing state responsibility for such acts would be the same as if the government has committed acts of torture or has inflicted extra-legal executions.

The UN Declaration on Disappearances establishes a whole number of duties for the purpose of preventing and taking action in response to disappearances:

1. The prompt, thorough and impartial investigation by a competent and independent State authority
2. The prosecution of alleged perpetrators
3. Compensation for the family
4. Non-expulsion to a country where there are substantial grounds to believe that a person would be in danger of enforced disappearance.

Those obligations are also contained in the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

Part II : Wounded, sick and shipwrecked #Section III -- Missing and dead persons
Article 32 General principle

In the implementation of this Section, the activities of the High Contracting Parties, of the Parties to the conflict and of the international humanitarian organizations mentioned in the Conventions and in this Protocol shall be prompted mainly by the right of families to know the fate of their relatives.

Article 33 Missing persons:
1. As soon as circumstances permit, and at the latest from the end of active hostilities, each Party to the conflict shall search for the persons who have been reported missing by an adverse Party. Such adverse Party shall transmit all relevant information concerning such persons in order to facilitate such searches.

2. In order to facilitate the gathering of information pursuant to the preceding paragraph, each Party to the conflict shall, with respect to persons who would not receive more favourable consideration under the Conventions and this Protocol:

(a) record the information specified in Article 138 of the Fourth Convention in respect of such persons who have been detained, imprisoned or otherwise held in captivity for more than two weeks as a result of hostilities or occupation, or who have died during any period of detention;

(b) to the fullest extent possible, facilitate and, if need be, carry out the search for and the recording of information concerning such persons if they have died in other circumstances as a result of hostilities or occupation.

3. Information concerning persons reported missing pursuant to paragraph 1 and requests for such information shall be transmitted either directly or through the Protecting Power or the Central Tracing Agency of the International Committee of the Red Cross or national Red Cross (Red Crescent, Red Lion and Sun) Societies. Where the information is not transmitted through the International Committee of the Red Cross and its Central Tracing Agency, each Party to the conflict shall ensure that such information is also supplied to the Central Tracing Agency.

4. The Parties to the conflict shall endeavour to agree on arrangements for teams to search for, identify and recover the dead from battlefield areas, including arrangements, if appropriate, for such teams to be accompanied by personnel of the adverse Party while carrying out these missions in areas controlled by the adverse Party. Personnel of such teams shall be respected and protected while exclusively carrying out these duties.

Paragraph 1 -- Search
The persons covered by this paragraph are not listed. Apparently the only restriction imposed is that the request should come from the adverse Party. Does this mean that the latter may request information about anyone? It certainly does not. The request must relate to persons who are either nationals of that Party, or in some other way are linked to it..

Persons to be searched for, according to a request, should basically be combatants from whom there has been no news, or civilians in occupied territory or enemy territory.

The obligation is imposed only on Parties to the conflict, which is logical in the context of international humanitarian law. It is expressed in a very general manner: those persons who have been reported missing shall be "searched for". The first step in such a search, which suffices in some cases, may be relatively simple: the last known place of residence of the person concerned is checked or the registers of detention centres are inspected (however, the second task may be more complicated than it seems if there is no central register or if the registers are badly kept or non-existent).

The Conference did not specify how far the obligation extends. Certainly it would not be met if the first step mentioned above, which must be considered as a minimum requirement, were not undertaken. As regards the second step, there were delegates who stated that "too heavy a burden should not be imposed on the Parties" and that "account must be taken of the fact that the conditions of the search might be difficult and the costs high".

We shall now consider the position of civilians in the territory of a Party to the conflict or in occupied territory who are not specifically protected by the fourth Convention, viz.:

a) nationals of a State not Party to the fourth Convention;
b) nationals, other than those in occupied territory, of a State not Party to the conflict which has "normal diplomatic representation" in the detaining State;
c) nationals of a co-belligerent State which has "normal diplomatic representation" in the detaining State;
d) the Party to the conflict's own nationals.

As regards the nationals of a Party to the conflict itself, the clear statements made in Committee II about excluding them from the scope of this Section were mentioned above. (33) Thus the Protocol does not impose an obligation on a State to keep records of its own nationals who are held in captivity, even when this is for reasons related to the hostilities. However, it cannot be denied that it would be desirable to keep such records in accordance with the general principle of Article 32 (General principle), ' particularly when a State is divided politically, or even physically split in two. In addition, it is absolutely essential that records of persons whose nationality is contested are kept, a fortiori when the question of nationality is the crux of the conflict.

The obligation to record prisoners of war (Article 4A Third Convention) and persons entitled to prisoner-of-war treatment (Article 4B, Third Convention) is laid down in Article 122 of the Third Convention, and these categories are therefore not covered by Article 33, paragraph 2, sub-paragraph (a), under consideration here.

Persons enjoying the status of combatant and, where applicable, prisoner-of-war status in accordance with Articles 43' (Armed forces), ' 44' (Combatants and prisoners of war) ' and 45' (Protection of persons who have taken part in hostilities) ' of the Protocol, and who are not covered by Article 4 of the Third Convention, are also protected, in the case of Parties to the Protocol, by Article 122 of the Third Convention, and therefore do not fall under Article 33 of the Protocol with which we are concerned here.

Apart from this, spies, (34) mercenaries (35) and all those denied prisoner-of-war status are normally covered by the fourth Convention, and if not, by this Article. [p.359] Thus records must be kept on them in accordance with the requirements examined above.

The same is confirmed in most of the disappearance cases as ruled by the human rights supervisory organs. In Velasquez for instance the Inter-American Court emphasises the following legal duties to exist on behalf of the state:
1. to take reasonable steps to prevent HRs violations
2. to use the means at their disposal
3. to carry out a serious investigation
4. to identify those responsible
5. to impose an appropriate punishment
6. to ensure the victim adequate compensation

One can conclude that there exists an obligation on a state confronted with a disappearance to investigate the matter effectively, to bring perpetrators to justice and to compensate the family.


B. Individual Responsibility:

B.1. "Disappearances" in an international armed conflict:

In an IAC if this crime amounts to a grave breach of the 4th Geneva Convention, it results ipso facto in individual criminal responsibility of the perpetrators, on the basis of universality of jurisdiction (art.146 Gen. IV).

There has also been an evolution of the notion of disappearances constituting a crime against humanity. Although no definition has been embodied in any multilateral treaty until now (it seems that the statute of the ICC is the first treaty to incorporate the definition) and the definition developed inconsistently, however, Enforced Disappearances, according to the status of the crime as embodied in several instruments, could amount to CAH if committed in a systematic manner or on a large scale.

Article 18 of its draft code of crimes against the peace and security of mankind drafted by the International Law Commission (ILC) and adopted in 1996, refers explicitly to "forced disappearance of persons", explaining that 'this type of criminal conduct is a relatively recent phenomenon' and proposing its inclusion "because of its extreme cruelty and gravity". (See Yearbook of the International Law Commission 1996, vol, II (Part Two), commentary on Article 18 - Crimes against humanity).

Moreover, the preamble to the UN Declaration describes the systematic practice of enforced disappearance as being of the nature of a CAH and the preamble to the OAS Convention on Disappearances affirms that the systematic practice of the forced disappearance of persons constitutes a CAH.

According to article 7 of the ICC Statute, enforced disappearance of persons constitute crimes against humanity "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack".
Article 7.2 (b) (i) of the Statute defines the crime of enforced disappearance as "the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time".

The definition of the Rome Statute was further developed by the "Elements of crime" adopted by the Preparatory Commission for the ICC in 2000 (See report of the Preparatory Commission, PCNICC/2000/1/Add.2). Accordingly, the crime against humanity of enforced disappearance of persons contains the following elements:

1. The perpetrator:
(a) Arrested, detained or abducted one or more persons; or
(b) Refused to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons.

2. (a) Such arrest, detention or abduction was followed or accompanied by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; or
(b) Such refusal was preceded or accompanied by that deprivation of freedom.

3. The perpetrator was aware that:
(a) Such arrest, detention or abduction would be followed in the ordinary course of events by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; or
(b) Such refusal was preceded or accompanied by that deprivation of freedom.

4. Such arrest, detention or abduction was carried out by, or with the authorization, support or acquiescence of, a State or a political organization.

5. Such refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons was carried out by, or with the authorization or support of, such State or political organization.

6. The perpetrator intended to remove such person or persons from the protection of the law for a prolonged period of time.

7. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

8. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

However, no recognition of the principle of universal jurisdiction over crimes against humanity has been embodied in a treaty. Yet, the principle of universal jurisdiction has been recognised in the Nuremberg Charter, where Crimes against humanity fell under the jurisdiction of the IMT (Art. 6 (c)). In fact, most of the individuals tried before it were charged with crimes against humanity.

In application of CCL No 10, crimes against humanity have been recognised, just like war crimes, as offences against international law (see e.g. United States vs. Altstoetter et al.("The Justice trial Case"), 17 Feb.-4 Dec. 1947, VI LRTWC 1, at 45-46). Resolution 3074 (XXVIII) of the General Assembly of the United Nations clearly provides for universal jurisdiction when facing crimes against humanity or war crimes. Furthermore, not only do international norms explicitly contemplate the criminal prosecution of gross perpetrators of abuse, in some situations states are under the obligation to extradite or prosecute offenders according to the rule of aut dedere aut judicare (See U.N. Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions-E.S.C. res. 1989/65, annex (endorsed by GA Res. 44/162 (1989)). See also the Preamble of the Statute of the International Criminal Court).

Recent cases before national tribunals indicate that crimes against humanity are to be considered as crimes against international law and against the international community as a whole, and therefore are not restricted to the principle of territorial jurisdiction (see The Attorney General of the Government of Israel vs. Adolf Eichmann, District Court of Jerusalem (1961), reprinted in 36 ILR 18, at 26; Attorney General of Israel vs. Eichmann, Israel Supreme Court (1962), reprinted in 36 ILR 28; Demjanjuk vs. Petrovky, 776 F.2d 571, at 582, reprinted in 79 ILR 538, at 545 ; Fédération nationale des déportés et internés résistants et patriotes and others vs. Barbie (Cass. crim. 1983), 78 ILR 125, at 130); see also R. vs. Finta (24 March 1994), 1 SCR 701, Dissenting opinion by Justice LaForest. See also Polyukhovich vs. Commonwealth of Australia, (Australian High Court, 14 August 1991), 172 CLR 501, at 562-3, 565, (Justice Brennan compared it to piracy). The applications of Spain, Switzerland and France for the extradition of Pinochet forcefully confirm these states' recognition of universal jurisdiction over the crimes of which he is accused, and the importance that such crimes not go unpunished. Finally according to the writings of most sholars "It is now widely accepted that crimes against humanity . . . are subject to universal jurisdiction." (Theodor Meron, 89 Am. J. Int'l L. (1995), pp. 554, 569; See also: M. Cherif Bassiouni, Crimes against Humanity (Dordrecht/Boston/ London: Martinus Nijhoff Publishers 1992), pp. 510-527; Eric David, Principes de Droit des Conflits Armes (Bruxelles: Editions Bruylant 1994, para. 4.194 et seq., pp. 643 et seq.; Kenneth C. Randall, "Universal Jurisdiction under International Law", 66 Tex. L. Rev. (1988), pp. 785, 814).

Thus, are the perpetrators triable on the basis of universality of jurisdiction, other than for torture or arbitrary execution? Art 14 DAED seems to imply that. It was clear the intention of the Sub-Commission draft the universality of jurisdiction be provided for. The Sub-Commission's proposal for mandatory jurisdiction was substantially amended. It appears that the present wording is a compromise providing for permissive jurisdiction.

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