Enforced Disappearance: Not Just for Latin American Dictators Anymore

by Kevin Jon Heller

It’s not every day that a state enacts a law that blatantly authorizes crimes against humanity, so I feel obligated to give a special shout-out to China, who intend to make the crime against humanity of enforced disappearance official government policy:

Chinese police will gain new legal powers to detain suspects for up to six months without telling their families where or why they are held, according to a state newspaper’s account of planned reforms.

[snip]

The proposed changes are part of an overhaul of criminal procedure law now being considered by the National People’s Congress (NPC), China’s legislature.

[snip]

The draft text has not been published, but the Legal Daily newspaper reported that police would be able to hold suspects in state security, terrorism or major corruption cases at a “designated residence”, if holding them at home would impede the investigation. The decision would need to be approved by higher officials.

In state security and terrorism cases the police would not have to notify the suspect’s family if they believed it might hinder the investigation – a criterion that scholars say is so vague as to be meaningless. Experts say residential surveillance has been misused in the past.

Here are the elements of Article 7(1)(i) of the Rome Statute:

Crime against humanity of enforced disappearance of persons

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.

Deprivation of freedom?  Check.  Refusal to acknowledge said deprivation of freedom?  Check.  Deprivation carried out by the state?  Check.  Refusal to acknowledge said deprivation official state policy?  Check.  Intent to remove detainees from protection of the law?  Check.  Widespread or systematic attack?  There will be, if the law is used often enough.

Congratulations, China.  You’re on the cusp of entering an elite fraternity, one whose most famous members are the Nazis and Latin American dictators.

http://opiniojuris.org/2011/08/27/enforced-disappearance-not-just-for-latin-american-dictators-anymore/

4 Responses

  1. That’s why Taiwan is so different from PRC, and it’s interesting to see what kind of responses would be made from the Human Rights Council and all of those supervision mechanisms. As Bassiouni ever said, the tension is always between states’ interests and the pursuit of international justice. Wait and See!

  2. hey this was an interesting article . I am a 1st yr law student with interest in international law can u tell me which would be the best legal blogs in international law.

  3. shantanu,

    Us, intlawgrrls, ejil:talk, international law reporter, international law observer, justice in conflict, wronging rights, un dispatch.

    Check out the links on the right.

  4. Response…
    Of course, the ICC definition is far too restrictive — e.g., CAH do not need to be either widespread or systematic or part of a plan or policy. Of course, China could have consulted George Bush, Dick Cheney, Rice, Rumsfeld, et al. regarding what Bush called his “program” of secret detention (i.e., crimes against humanity)!
    Durig war, these are also violations of the laws of war as ell as human rights law.  See, e.g., Paust, Beyond the Law… (Cambridge Univ. Press) or
    http://ssrn.com/abstract=1331159 and
    http://ssrn.com/abstract=903349
    Perhaps we should create an ad hoc International Criminal Court to prosecute Bush, Cheney, et al. and any relevant Chinese officials.

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