HUMR5132 Human Rights Law in Context

Enforced Disappearances

Overview

• Introduction – Definition

– Scope of the problem

– International efforts before 2006

• The law – The underlying human rights problems

– The 2006 convention

– Other instruments

– International humanitarian law

• The closure – Presumption of death

Definition

• “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”

• Art. 2 CED, Art. 7.2.i ICC, DED preamble, Art. II IACFD

The problem

• First recorded use: Nazi Germany, 1941, the “Nacht und Nebel” decree

• Post WWII: Latin American dictatorships in the 1960’s/-70’s, later a global problem

• 1978: First reference to the term “enforced disappearances” in UN: GA res. 33/173

• Impossible to know the scope. Amnesty: “hundreds of thousands of people”

• Latin America worst? Around 90,000 cases.

• But affects also Europe (Russia, Cyprus, Turkey…), Africa (Algeria, Morocco, Zimbabwe…), Asia (Pakistan, India, China…)

• WGEID: 53,337 cases from 1980 to 2010, but dramatic under-reporting is presumed

Important international milestones

• 1978: UNGA resolution 33/173

• 1979-1980: Commission on Human Rights and WGEID

• 1981-1984: Drafts of legal instrument

• 1992: UNGA resolution 47/133, the Declaration on the Protection of all persons from Enforced Disappearance

• 1994: The Inter-American Convention on Enforced Disappearance of Persons

• 2006: International Convention for the Protection of All Persons from Enforced Disappearance

• For details, see http://www.icaed.org/the-convention/history-and-background-of-the-convention/

Working Group on Enforced or Involuntary

Disappearances

• Established by CHR res. 20 (XXXVI) (1980): to “examine questions relevant to enforced or involuntary disappearances of persons”.

• Now a special procedure under Human Rights Council

• Mandate (HRCouncil Res 7/12): – Humanitarian

– Monitoring of DED

• Methods of work: – Urgent procedures

– Standard procedures

• Has considered more than 50,000 cases

THE UNDERLYING HUMAN

RIGHTS PROBLEMS

THE LAW

The “multiple rights” approach

• Enforced disappearances violate a range of independent human rights

• IACtHR, Velásquez Rodríguez: ”The forced disappearance of human beings is a multiple and continuous violation of many rights …”

• IACommHR, Garcia Franco: ”the consequence of an enforced disappearance is to be denied every essential right deemed to inhere in the very fact of being human”

• IACFD, preamble: ”violates numerous non-derogable and essential human rights”

• Before the 2006 Convention, only the IACFD had established freedom from enforced disappearances as an independent human right – recourse had to be (and still has to be) had to other rights

The right to life

• DED Art. 1.2: Enforced disappearance

”violates or constitutes a grave threat to the

right to life”

• HRC GC6: State obligation to ”prevent the

disappearance of individuals, something

which unfortunately has become all too

frequent and leads too often to arbitrary

deprivation of life”.

The right to life (ctd.)

• IACtHR, Velásquez Rodríguez (1988): ”The practice of disappearances often involves secret execution without trial … This is a flagrant violation of the right to life”.

• ECtHR, Timurtaş (2000): ”Whether the failure on the part of the authorities to provide a plausible explanation as to a detainee's fate, in the absence of a body, might ... raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on concrete elements, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody” – Chechnya, South-East Turkey: ” when a person is detained by

unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening.”

• Reality: A disappearance may constitute an a priori violation of the right to life, even in the absence of a body

The right to liberty and security

• Enforced disappearances are, per definition,

arbitrary detention.

• DED Art. 1.2: An act of enforced

disappearance ”constitutes a violation of …

the right to liberty and security”

• If violation of other provisions can’t be

established, the right to liberty and security

may still be violated

• In principle instantaneous. In practice?

The right to liberty and security (ctd.)

• IACtHR, Velásquez Rodríguez: ”The kidnapping of a person is an arbitrary deprivation of liberty”.

• ECtHR, Kurt (1998): ”the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5”

• HRC, Rafael Mojica (1991): The right to liberty and security may be violated in disappearance cases, even without evidence of the arrest or the abduction

The prohibition against torture

• DED Art. 1.2: An act of enforced disappearance

”constitutes a violation of … the right not to be

subjected to torture”.

• IACtHR, Velásquez Rodríguez: ”Prolonged

isolation and deprivation of communication are in

themselves cruel and inhuman treatment”

– …but other cases say that isolation and

incommunication are not per se inhuman treatment

– ECtHR: Enforced disappearances do not constitute

violations per se of Article 3

The prohibition against torture (ctd.)

• Two aspects:

1.The disappeared person is the victim

– Evidence of ill-treatment is required

2.The disappeared person’s relatives are

victims

– The effect of the disappearance on the relatives

may constitute independent violation of the right

– IACtHR, Blake (1999)

– ECtHR, Timurtaş … and many others

The right to recognition as a person

• DED Art. 1.2: An act of enforced

disappearance ”constitutes a violation of …

the right to recognition as a person before

the law”

• Inter-American: Apparently differing views

between IACtHR (no violation) and

IACommHR (violation)

• HRC: Recognised that the right is affected,

but violation has not been established

The “right to know the truth”

• More problematic – Legal basis?

– Scope?

• Two aspects 1. Individual knowledge

2. General knowledge

• HRC, Quinteros (1981): ”the author has the right to know what has happened to her daughter”, violation of ICCPR Art. 7 (inhuman treatment)

• Recognised by the WGEID in 1981, see now ”General Comment on the Right to the Truth in Relation to Enforced Disappearances”

• Now: An express legal basis in the 2006 Convention

The right to a remedy

• Access to justice

• Reparation

– Obligation to provide adequate compensation

• Transitional justice – second hour

Some special questions relating to

children’s rights

• Several aspects:

1. A child is disappeared

2. A child loses one or both parents

• …and may be adopted as a consequence

3. A child is born by a mother who is forcefully

disappeared

THE 2006 INTERNATIONAL CONVENTION

FOR THE PROTECTION OF ALL PERSONS

FROM ENFORCED DISAPPEARANCE

THE LAW

Adoption and current status

• 2001: CHR instigated formal negotiations

• Adopted by UNGA 20.12.2006

• Entry into force: 23.12.2010 (after 20

ratifications)

• Today: 36 parties, 91 signatories

The general obligation of States

• Article 1: ”No one shall be subjected to enforced disappearance”

• Non-derogable right

• Definition in Article 2: ”agents of the State” or ”authorization, support or acquiescence of the State”

• Article 3 expands the scope: Duty to investigate and prosecute acts committed by other persons – i.e. kidnappings; further reading: C.M. Bailliet, «Towards

Holistic Transnational Protection …», 38 Denver J Int L (2010) 581-622

• Article 23: Training

The key obligation: Criminal

responsibility

• Article 4: Domestic criminal law, ”take the

necessary measures to ensure that enforced

disappearances constitute an offence under

its criminal law”

• Article 5: International criminal law – crimes

against humanity

– See also ICC Statute Art. 7.1.i and 7.2.i.

• Article 6: Direct responsibility and superior

responsibility

The key obligation: Criminal

responsibility (ctd.)

• Article 7: An obligation to establish ”appropriate

penalties” taking into account the crime’s

”extreme seriousness”

• Article 8: 1. No prohibition against statutory

limitations, but strong limitations; 2. Right to an

effective remedy

• Articles 10 and 11: Duty to take into custody and

to prosecute

• Article 25: Particular rules pertaining to children

Reporting mechanisms

• Article 12: A right to report incidents of

enforced disappearance

– Not limited to persons with a legitimate interest

• Also a duty to investigate ex officio

Secret detention

• Article 17: ”No one shall be held in secret

detention”

• An obligation to keep registers

• Article 21 gives rules pertaining to release

• Article 22 provides sanctions

Access to information

• Article 18: Access to information

– Limited to persons with a legitimate interest

• Articles 19 and 20: Limitations and

restrictions to this right

• Article 24: The right to know the truth

Supervisory mechanisms

• The Committee on Enforced Disappearances

– Article 26, membership

• State reports, Article 29

• Individual requests for urgent action, Article 30

• Individual communications, Article 31

– Opt-in

– States already done so: Albania, Argentina, Austria,

Belgium, Chile, Ecuador, France, Germany, Mali,

Montenegro, the Netherlands, Serbia, Spain, Uruguay

Supervisory mechanisms (ctd.)

• State complaints, Article 32 – Opt-in

– Same States as under Article 31, plus Japan

• Committee visits, Article 33

• Article 34, special procedure in cases of widespread or systematic violations

• Article 35: The Convention is only applicable to disappearances ”which commenced after the entry into force” of the Convention

Other international instruments

• The 1992 Declaration most likely represents

customary law

• The 1994 Inter-American Convention

– Monitored by the IACommHR

• ICC Statute Art. 7.1.i: Enforced

disappearances are crimes against humanity

• ICCPR, ECHR, ACHR, ACPHR: The

”multiple rights” approach

International humanitarian law

• Applies to international and non-international armed conflicts, but also rules for post-conflict situations

• Treaty law: – GC IV art. 26, dispersed families

– AP I arts. 32-34 • Art. 32: The right of families to know the fate of their relative

• Art. 33: Obligation to search for missing persons after the end of active hostilities

• Art. 34: Rules pertaining to the remains of deceased persons

• Customary law: – ICRC Customary Law study, rule 98: “Enforced

disappearance is prohibited” • Both IACs and NIACs

• Includes a duty to investigate

PRESUMPTION OF DEATH

THE PERIPHERY

The need for closure

• A problem with regard to all missing and disappeared persons: How can the case be closed?

• CoE: “a fair balance must be struck between the interests of missing persons and of those with a legitimate interest, particularly as regards property and inheritance rights, pension and life insurance rights, the right to enter into a new union (remarriage, registered partnership or similar union existing in certain member states), legal affiliation and parental rights”

International human rights vs. national

law

• Different consequences of a presumption of death – Human rights: A condition to find a violation of the

right to life

– Domestic law: Domestic legal rights and obligations

• Human rights bodies: Concrete assessment, taking into account all circumstances of the case

• WGEID: ”As a general principle, no victim of enforced disappearance shall be presumed dead over the objections of the family.”

International conventions

• 1950 Convention on the declaration of death of missing persons, in force from 1952 to 1972

• 1966 Convention relating to the establishment of death in certain cases (the Athens Convention) – Declaration of death in cases where the body of a

missing person can’t be found, but where death is certain

– Ratified only by 5 States

The 2009 Council of Europe

recommendation to member States • Recommendation CM/Rec(2009)12 of the

Committee of Ministers to member states on principles concerning missing persons and the presumption of death

• Principle 1: A declaration of presumed death of the missing person may be issued if, in the light of all the circumstances of his or her disappearance:

a. death can be taken as certain; or

b. it is reasonable to conclude that the death of the missing person is likely; or

c. although the missing person’s death is uncertain, his or her disappearance cannot be reasonably attributed to any cause other than death.

Recommended further reading:

•M.F. Pérez Solla, Enforced Disappearances in International Human Rights

(McFarland, 2006)

•Lisa Ott, Enforced Disappearance in International Law (Intersentia, 2011)

Contact information: Kjetil Mujezinović Larsen

Associate Professor, the Norwegian Centre for Human Rights

Phone: +47 22 84 20 83

E-mail: k.m.larsen@nchr.uio.no