Enforced disappearances constitute a set of particularly invidious violations of human rights, not only for the victims, who are deprived of their liberty, frequently tortured, and in fear for their lives, but also for their families and friends, who are left in ignorance regarding the fate of their disappeared loved one. The Universal Declaration of Human Rights outlaws the practice, as do the two UN Covenants: the Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights. Other international human rights instruments take up the issue of enforced disappearances, as well.
Historical Background and International and Regional Reaction
Human rights groups are said to have first coined the term "disappeared" ("desaparecido") in 1966, referring to the victims of secret governmental crackdowns on political dissidents in Guatemala. Thousands of cases of disappearances were reported in the 1970s, primarily but by no means only from Central and Latin American countries. In response, the UN General Assembly adopted Resolution 33/173, entitled "disappeared persons," on December 20, 1978. In it, the General Assembly voiced concern over reports of enforced or involuntary disappearances from many countries. The disappearances were alleged to be the a result of unlawful actions and violence, and of excesses committed by law enforcement officials or security forces, and it was claimed that they often occurred while the persons were detained or imprisoned. The resolution further expressed concern over reports of difficulties in obtaining reliable information from the competent authorities about the situation of such persons, including reports of the persistent refusal of such authorities or organizations to account for such persons or even to acknowledge that they held such persons in their custody.
Regional organizations were similarly faced with the issue of disappearances. In October 1979 the General Assembly of the Organization of American States (OAS), at its ninth regular session, declared that the phenomenon of disappearances was a stain on the conscience of the hemisphere and contrary to traditional values and the declarations and agreements signed by the American States. A similar resolution was passed by the OAS General Assembly in November 1980.
In Europe, the Committee of Ministers of the Council of Europe adopted Recommendation No. R(79)6 on April 20, 1979, concerning the search for missing persons. On July 11, 1980, the European Parliament adopted a resolution on a report of enforced or involuntary disappearances in which the Parliament made an urgent appeal that everything possible be done to trace all persons reported as missing.
Definitional Issues and Rights Violated by the Practice of Disappearances
By resolution No.43/133 of December 18, 1992, the UN General Assembly adopted the Declaration on the Protection of All Persons From Enforced Disappearance. The preamble of the declaration sets forth the conditions defining an enforced disappearance:
[P]ersons are arrested, detained, and abducted against their will or otherwise deprived of their liberty by officials or different branches or levels of Government, or by organized groups, or private individuals acting on behalf of, or with the support, direct or indirect, consent, or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.
Article 7 of the Rome Statute of the International Criminal Court (ICC) reiterates these definitional elements and adds to them by specifically referring to the intention of the perpetrators to remove the disappeared persons from the protection of the law for a prolonged period of time. Article 2 of the Inter-American Convention on Forced Disappearance of Persons, adopted in Brazil in September 1994 and in force since March 28, 1996, adds the further stipulation that the disappearance of a person impedes the victim's "recourse to the applicable legal remedies and procedural guarantees."
Pursuant to article 1, paragraph 2, of the UN Declaration, any act of disappearance constitutes a violation of the rules of international law which guarantee, among other things, the individual's right to recognition as a person before the law, his or her right to liberty and security of their person, and the right not to be subjected to torture and other cruel, inhuman, or degrading treatment or punishment. It further frequently violates or constitutes a grave threat to the right to life. Some of the most fundamental principles enshrined in the Universal Declaration of Human Rights have been further spelled out in General Comments, which were adopted by the UN Working Group on Enforced and Involuntary Disappearances.
In addition, the preamble of the UN Declaration also notes that disappearances may entail violations of the UN Standard Minimum Rules for the Treatment of Prisoners (adopted in 1957), the Code of Conduct for Law Enforcement Officials (1979), and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988).
Characterizing Disappearances as a Crime against Humanity
The fourth preambular paragraph of the Declaration on the Protection of All Persons from Enforced Disappearance clearly states that the systematic practice of disappearances "is of the nature of a crime against humanity." The Rome Statute of the International Criminal Court (ICC), also expressly states that the practice of enforced disappearances constitutes a crime against humanity. Because of this, when disappearances occur on a large scale, such as in Argentina under military rule until 1983, in Sri Lanka during the armed conflict between the government and the Liberation Tigers of Tamil Eelam (LTTE) during the 1980s and 1990s, or in the former Yugoslavia in the early 1990s, it is in principle possible to prosecute the principal perpetrators on charges of crimes against humanity.
A Belgian law adopted in June 1993 established universal jurisdiction for the prosecution of war crimes and crimes against humanity. Prosecutors in Spain have invoked this law to initiate judicial investigations against several individuals, including former Chilean president Augusto Pinochet and other heads of state. Four individuals were convicted under this law by the Brussels Assises Court in April 2001 for their participation in the genocide in Rwanda. This conviction has prompted others to attempt to bring charges against acting or former heads of state. Even though this law was replaced in August 2003 with new legislation that severely limited the instances in which Belgian tribunals may assert universal jurisdiction, forced disappearances is nonetheless still recognized as a crime against humanity.
In contrast, a case brought against former Chadian president, Hissène Habré, was dismissed by the Senegalese Court of Cassation in a judgment dated March 20, 2001. The court held that no procedure confers universal jurisdiction upon Senegalese tribunals that would allow them to prosecute and judge foreigners under Senegalese jurisdiction for acts committed outside Senegal. The ICC, however, may be expected to prosecute disappearances where such acts are committed as part of a widespread or systematic attack against a civilian population.
Monitoring Mechanisms and Bodies
In Resolution No. 33/173, the General Assembly requested the UN Commission on Human Rights to consider the issue of disappearances. On February 29, 1980, the Commission passed Resolution 20 (XXXVI) and established a working group "consisting of five of its members, to serve as experts in their individual capacities, to examine questions relevant to enforced or involuntary disappearances of persons." The group was given a five-year mandate, and was the first mechanism established within the UN human rights program to specifically deal with flagrant and consistent human rights violations occurring on a global scale. Since 1980, the mandate of the Working Group has been renewed consistently every three years.
Since its creation, the Working Group has dealt with over 50,000 cases reported from more than seventy countries, but despite the group's best efforts, some 42,000 cases remain outstanding. The mandate of the group is primarily humanitarian in nature, and its working methods are designed to help it meet its main objective: to assist families in ascertaining the fate and the location of missing relatives who have been deprived of the protection of the law. The group seeks to establish channels of communication between the families and the governments concerned. Whenever appropriately documented and clearly identified cases are brought to the group's attention, it tries to ensure that these cases are investigated by the relevant government, with the ultimate goal of discovering the location of the missing person.
The group meets three times annually and reports on its activities to the Commission on Human Rights. For its part, the Commission has urged governments to take steps to protect the families of disappeared persons against any intimidation or ill-treatment to which they might be subjected. It has also asked these governments to give serious consideration to inviting the Working Group into their country for a visit. Since 1982, the working group has conducted a total of thirteen missions to ten countries.
The Human Rights Committee was established under Article 28 of the International Covenant on Civil and Political Rights (ICCPR). Among its other duties it regularly examines issues pertaining to disappearances. These may take the form of individual complaints that have been submitted for consideration, or they may arise from reports submitted by member states. If it determines that a country may have failed to thoroughly investigate charges of disappearances, or that it has neglected its duty to bring the responsible parties to justice, the Committee makes reference to these concerns. It has done so on several occasions in recent years, for example in its concluding observations on the periodic reports of Guatemala and Sri Lanka. In addition, it has held that the prohibitions against unacknowledged detentions (one of the principal root causes for disappearances), hostage taking, and abductions are absolute and cannot be annulled, not even during a state of emergency. The Inter-American Convention similarly outlaws the practice of forced disappearances in all circumstances, even during an emergency.
In addition to the UN Working Group and the Human Rights Committee, there is one other agency that is authorized to deal with and monitor cases of missing and disappeared persons. This is the International Committee of the Red Cross, which is granted such authority in situations of international armed conflict, by the Geneva Conventions of 1949 and their 1977 Protocols.
The Human Rights Committee has dealt with a number of complaints involving enforced disappearances. In the 1981 case of Elena Quinteros v. Uruguay, the complainant's daughter was arrested by members of the military and held incommunicado. Later, she managed to elude her captors and to enter the grounds of the Venezuelan embassy in Montevideo, but was abducted from there by Uruguayan police officers. Although the Committee failed to determine her subsequent whereabouts, it did find that the Uruguayan authorities were in violation of the ICCPR on several counts, although the specific definition of forced disappearance was not invoked.
The 1991 case of Barbarin Mojica v. Dominican Republic provides another example of the Committee's work. In this case the son of a well-known Dominican labor leader was last seen by his family on May 5, 1990. The missing man had been receiving death threats in the weeks prior to his disappearance. Witnesses testified that they had seen him board a taxi in which other unidentified men were traveling. His father repeatedly asked the authorities to open an investigation into his son's disappearance, but his requests were ignored. The Committee found that the Dominican authorities were in violation of the ICCPR. What is interesting in this case is that although there was no specific allegation of torture of the disappeared, the Committee nonetheless felt justified in concluding that "the disappearance of persons is inseparably linked to" such treatment.
In 1996 the Committee decided the case of Ana Celis Laureano v. Peru. Here, the petitioner reported that his granddaughter had been abducted in Huaura province by unknown armed men, presumed to be members of the Shining Path movement. Several months later, the granddaughter was released, only to be picked up by the Peruvian military on suspicion of collaboration with the Shining Path. The military held the young woman incommunicado. A a judge ordered her release on the ground that she was a minor, and she was returned to the care of her grandfather. She was abducted again, and this time her grandfather could not discover where she was being kept. Upon investigating her disappearance, a civil court judge concluded that military or special police units were responsible for her disappearance, and found these bodies to be in violation of several articles of the Covenant on Civil and Political Rights. Once again, however, the specific definitional language of forced disappearances was not invoked.
The case of Sarma v. Sri Lanka, decided in 2003, is the first in which the specific legal definition of forced disappearance was explicitly invoked by the Committee. In this case the complainant, his son, and other individuals were taken from their family home by army officers in the presence of several witnesses. The complainant's son, suspected of membership in the Tamil Tigers, was later transferred to an army camp, while the complainant (Sarma) and others were released. Sarma then made several attempts to locate his son and to secure his release, but was frustrated on both counts. Upon investigation of the case, the Committee found the Sri Lankan authorities guilty of several violations contained under the general rubric of forced disappearances.
Over the years, the Committee has become more and more specific in its recommendations on appropriate remedies in disappearance cases. Thus, in the last-mentioned case, the Committee urges Sri Lanka to "expedite the current criminal proceedings and ensure the prompt trial of all persons responsible for the abduction of the [complainant's] son under Section 365 of the Sri Lankan Penal Code." This tendency toward greater specificity indicates the Committee's determination that all countries party to the ICCPR recognize the need for rigorous investigation whenever disappearance has been formally alleged, and that they honor their obligation to provide effective remedies to the victims.
The Inter-American Court of Human Rights has also dealt with the issue of unacknowledged and incommunicado detention. In January 1987, it delivered an Advisory Opinion on the right to habeas corpus in Emergency Situations, in which it held that the legal remedies guaranteed under to victims of forced disappearance—including the right to habeas corpus—are absolute and may not be suspended. The court was prompted to render this decision at the request of the Inter-American Commission, which was troubled by the tendency of several Latin American countries to enact special laws in order to provide legal cover for their practice of holding detainees in incommunicado custody for prolonged period of times. The court's opinion rendered such all such special laws invalid, so that they could no longer be asserted as a defense against a charge of forced disappearance.
Duty to Investigate and to Provide Effective Judicial Remedies
In resolution 33/173, the UN General Assembly calls upon member states to conduct rapid and impartial investigations into cases of enforced or involuntary disappearances, and to ensure that law enforcement and security authorities are held fully accountable in the discharge of their functions. Article 3 of the Disappearances Declaration further stipulates that each state "shall take effective legislative, administrative, judicial, or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction." The declaration asserts that acts of enforced disappearance "shall be offenses under criminal law punishable by appropriate penalties." Similarly the Human Rights Committee notes that "States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life." It is unfortunately the case that few countries have taken steps to incorporate the principles embodied in the Disappearances Declaration into their domestic legislation. The Working Group on Enforced or Involuntary Disappearances has consistently emphasized that the obligation to implement the Declaration applies to all states, not only to those in which disappearances actually have occurred or continue to occur.
The Working Group has noted that the presumption of impunity has been the major reason behind the continued practice of forced disappearance. In its report to the Commission on Human Rights in 2002, the Group stressed the importance of bringing perpetrators to justice. This is a difficult challenge to meet, for in many countries with a high incidence of cases of disappearances, such as Iraq, Algeria, and Guatemala, the absence of specific legislation and/or the unwillingness or inability of the authorities to properly investigate disappearances or prosecute the perpetrators remains a serious problem. So does the tendency of some countries to grant amnesty to the perpetrators of acts of disappearance and torture, in the name of national reconciliation, because such amnesty helps to reinforce the idea that perpetrators can commit these crimes with impunity.
Several countries have passed specific legislation to assist national authorities in successfully investigating and prosecuting acts of disappearances. Among these success stories is Argentina. In October 2000 the Human Rights Committee welcomed the criminal prosecution and conviction of several former high-ranking Argentinian military officers who had been accused of acts of disappearance and torture.
Argentina has taken a number of other steps to ameliorate the damage done by the practice of forced disappearances. It has set up a mechanism to facilitate the identification of children who had been taken by force from their parents, when it became clear that the parents had disappeared. It has passed legislation that gives constitutional rank to the Inter-American Convention on Forced Disappearance of Persons. The Argentinian Constitution of 1994 introduces forced disappearance as a ground for habeas corpus proceedings. Mindful of the disappearances that occurred during the military regime in the 1970s and 1980s, the government signed into law an act that offers compensation to the survivors of certain victims of forced disappearance and of those who had died as a result of action by the armed forces, security forces, or any paramilitary group prior to December 1983. The law was passed in 1994, and in June 1995 a second law was passed that extended the time limit for submitting benefit applications by five years.
The government of Sri Lanka has also attempted to come to grips with the large number of disappearances resulting from the armed conflict. Three regional Presidential Commissions of Inquiry into Involuntary Removal or Disappearance of Persons were set up in November 1994. Over the next three years they investigated more than 27,500 complaints and found evidence of forced disappearance in 16,742 of them. On September 3, 1997, they submitted their reports to the Sri Lankan president.
While the commissions conducted their investigations, the Sri Lankan Parliament enacted the Human Rights Commission of Sri Lanka Act of August 1996. The National Human Rights Commission is entrusted with many human rights tasks. It investigates complaints about disappearances and conducts surprise visits to police stations and detention centers. In May 1999, the government established a special unit charged with computerizing lists of all reported cases of disappearances, in an effort to facilitate investigations. These computerized lists, together with the enactment of new legislation, have greatly expedited the process of issuing death certificates in respect to missing persons who are presumed dead. Between 1995 and 1999, some 15,000 death certificates were issued, permitting more than 12,000 families to receive compensation from the government for their loss.
The Sri Lanka Criminal Code includes the abduction of persons as a criminal offense. However, the Human Rights Committee has noted after examining a report submitted by Sri Lanka that this is a difficult charge to prove. The majority of prosecutions initiated against members of the armed forces on charges of abduction and unlawful confinement have been inconclusive because of the lack of satisfactory evidence and unavailability of witnesses, and only very few police or army officers have been found guilty and punished.
Toward a Binding New Instrument
In spite of the existing international instruments and mechanisms in place to deal with the practice of disappearances, the UN Sub-Commission on Protection and Promotion of Human Rights submitted a Draft Convention on Disappearance to its parent body, the Commission on Human Rights, in 1999. The aim of the drafters was to further strengthen legal protections for all persons threatened with enforced disappearance. Comments on the draft were solicited from member nations, intergovernmental institutions, and nongovernmental institutions operating in the international arena. These comments were published in 2001.
Publication of the draft and its comments was followed in January 2003 by the formation of a working group of the Commission on Human Rights. The group was charged with the task of determining what new legal instrument might be needed, what provisions should be included in it, and how to best monitor its application. In January of 2004, the group held its second meeting, during which a number of unresolved and contentious issues emerged.
For instance, many states wanted to entrust the monitoring functions to the Human Rights Committee or a special chamber thereof. Discussion also centered on the mechanics of monitoring, with some states recommending that the monitoring agency be granted fact-finding capabilities and perhaps periodic country visits by the Committee's special chamber. Participants in the meeting were clear that the new monitoring agency should not adversely affect the role of the UN Working Group on Enforced and Involuntary Disappearances.
The inclusion of enforced disappearances as a crime against humanity was another well-debated issue. Many states favor a prominent reference in the Preamble of the new instrument to enforced disappearances that occur on a massive or systematic scale as a crime against humanity, using the definition of such crimes that has been established by the Rome Statute of the International Criminal Court. Other states prefer a separate provision stipulating that disappearances committed in a massive or systematic manner constitute a crime against humanity and carry consequences in accordance with international law. The specific wording of the definition of enforced disappearances was also subject to debate, as was the question as to whether there should be any statute of limitations applied to the crime. Also unresolved was the exact nature of the obligations of each state to enact domestic legislation that incorporates the crime of enforced disappearance, the propriety of granting amnesty or pardons to perpetrators of this crime, and the designation of jurisdictions in which crimes of force disappearances might most competently be prosecuted. Finally, the group debated what might be appropriate preventive measures that could be taken by states to reduce the incidence of this crime.
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