Enforced disappearance
An enforced disappearance (or forced 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.[1][2] 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.
"Disappeared" and "Desaparecidos" redirect here. For other uses, see Disappeared (disambiguation) and Desaparecidos (disambiguation).
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 wars. However, it has occurred all over the world.[3]
According to the Rome Statute of the International Criminal Court, which came into force on July 1, 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 December 20, 2006, the United Nations General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance.
Human rights law[edit]
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,[4] such as Nazi Germany's Night and Fog program, which may constitute 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.[5]
The International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly on December 20, 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 (UDHR). For the disappeared person, these include the right to liberty, the right to personal security and humane treatment (including freedom from torture), 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.
History of the legal development and international jurisprudence[edit]
General background[edit]
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 August 26, 1789, in France by the authorities that emerged from the French Revolution, where it was already stated in Articles 7 and 12:
Report of the UN (1980–2009)[edit]
Since the establishment of the Working Group on Enforced or Involuntary Disappearances of the United Nations Commission on Human Rights (CHR) in 1980, the crime of enforced disappearance has proved to be a global problem, affecting many countries on five continents. It is the subject of a special follow-up by the HRC which regularly publishes reports on its complaint and situation, as well as the response and action of the governments concerned.[32]
The report of the 2009 Working Group recorded a total of 53,232 cases transmitted by the Working Group to Governments since their inception in 1980 and affecting 82 states. The number of cases that are still under study due to lack of clarification, closed or discontinuous cases amounts to 42,600. Since 2004 the Working Group had clarified 1,776 cases. In the previous report of 2007, the number of cases had been 51,531 and affected 79 countries.[33] Many of the countries in the cases are affected internally by violent conflicts, while in other countries the practice of repressive policies towards political opponents is denounced. In other countries, generally in the western and European hemispheres, there are still historical cases that remain unresolved and constitute permanent crimes.
In the official UN report of 2009, of the 82 countries where the cases of missing persons were identified, the largest number (more than 1000) transmitted were:[34] Iraq (16,544), Sri Lanka (12,226), Argentina (3,449), Guatemala (3,155), Peru (3,009), Algeria (2,939), El Salvador (2,661) and Colombia (1,235). Other countries with numerous cases under denunciation (between 1000 and 100) are: Chile (907), China (116), Congo (114), Ethiopia (119), Philippines (780), Honduras (207), India (430), Indonesia (165), Iran (532), Lebanon (320), Morocco (268), Mexico (392), Nepal (672), Nicaragua (234), Russian Federation (478), Sudan, Yemen (155) and East Timor (504).
Examples[edit]
Algeria[edit]
During the Algerian Civil War, which began in 1992 as militant Islamist guerrillas attacked the military government that had annulled an Islamic Salvation Front victory, thousands of people were forcibly disappeared. Disappearances continued up to the late 1990s,[35] but thereafter dropped off sharply with the decline in violence in 1997. Some of the disappeared were kidnapped or killed by the guerrillas but others are presumed to have been taken by state security forces under Mohamed Mediène. This latter group has become the most controversial. Their exact numbers remain disputed, but the government has acknowledged a figure of just over 6,000 disappeared, now presumed dead.[36] The war claimed a total toll of 150,000–200,000 lives.
In 2005 a controversial amnesty law was approved in a referendum. It granted financial compensation to families of the "disappeared", but also effectively ended the police investigations into the crimes.[37]
Enforced disappearances within migration[edit]
The increasingly perilous journeys of migrants and refugees and the ever more rigid migration policies of states and transnational organizations like the European Union cause a particular risk for migrants to become victims of enforced disappearances.[192] This has been recognized by the UN's Working Group on Enforced or Involuntary Disappearances.[193] Also the UN Committee on Enforced Disappearances recognized the increased risk of enforced disappearances as a result of migration in the Guiding Principles for the Search of Disappeared Persons.[194]