31 May Enforced Disappearances: A Global Scourge, Increasingly Under the Radar
Cases from across the globe have epitomised the crime of enforced disappearance, the most high-profile recently being the disappearance and killing of journalist Jamal Kashoggi. The abduction of the head of Interpol in China is another dramatic instance. Recently, families of individuals from Kuwait who were disappeared by the Iraqi army have been in the news, and there have been mass protests in relation to the disappearance of 43 student teachers in Mexico.
The International Convention for the Protection of All Persons from Enforced Disappearance (‘ICPPED’), which entered into force in 2010, defines the crime of enforced disappearance as the deprivation of liberty, by arrest, abduction, detention, committed by or with acquiescence of state authorities, with no subsequent acknowledgement, and their being placed outside the protection of the law (paraphrasing Article 2). The ICPPED has 60 state parties, and 98 signatories.
The statistics are grim – as of 2016, the UN Working Group on Enforced or Involuntary Disappearances (‘UNWGEID’) had under consideration 44,159 cases in a total of 91 states. At its latest session in May 2019, the UNWGEID reviewed 425 cases from 36 countries. It examined 49 reported cases of enforced disappearances using its “urgent action” procedure, involving recent cases from Bangladesh, Burundi, Egypt, India, Pakistan, the Russian Federation, Saudi Arabia, Sudan, Syria, Turkey and Venezuela.
What is noteworthy is that enforced disappearances have been carried out in a variety of contexts – internal conflicts and separatist movements, civil war, and to quell political dissent in ‘normal’ circumstances. Enforced disappearances are also increasingly being used of addressing terror offences. Common to these contexts though is impunity and the lack of accountability – a fundamental part of the crime.
Lack of criminalization and “short-term” disappearances
One aspect of the legal landscape in regard to these crimes is the lack of criminalization of enforced disappearances in many jurisdictions, which impacts the rights of victims to remedy and redress, as well as the right to truth of the families. Criminal laws in many jurisdictions provide only for kidnapping, or abduction and do not contain an explicit category of enforced disappearance. Therefore, neither the totality of the continuing and serious crime of enforced disappearance, nor the crucial role of the state are encompassed. Other factors that contribute to impunity include laws that provide immunity or require sanction for prosecuting state officials, the jurisdiction of military courts, statute of limitations and the lack of superior responsibility.
Another aspect of concern is the increasing use of “short-term” disappearances – where the individual is detained for a period of time, and eventually freed. This is in effect a powerful tool in the hands of the state – that enables detention, with similar end results that may be used in “regular” enforced disappearances i.e. silencing critical voices, as well as pressuring families for compliance. Recent cases include China’s increasingly emboldened disappearances of booksellers from Hong Kong. These are examples of the power and increased use of these short-term disappearances. The Chair of the UNWGEID has warned that this is also being used as a method to obtain evidence, particularly in regard to counter-terror operations and in many cases with coercion.
A key part of the crime of enforced disappearance is theplacement of the victim “outside the protection of the law”. The question therefore remains to be asked – where is the line between arbitrary detention and that of an enforced disappearance? Are these lines being blurred, and what are the implications?
A precursor to the ICPPED is the Declaration on the Protection of All Persons from Enforced Disappearance. As part of the interpretation of the declaration, paragraph 8 of the General Comment on the definition of enforced disappearance (2007) states,
“8. Even though the Working Group, in its general comment on article 10 of the Declaration, has said that any detention that is unduly prolonged constitutes a violation of the Declaration, this does not mean that any short-term detention is permitted by the Declaration, since the Working Group immediately clarifies that a detention where the detainee is not charged so that he can be brought before a court, is a violation of the Declaration.” (emphasis mine)
Confusion has arisen due to the increased use of such short-term disappearances, as well as the inclusion of a temporal element in the Rome Statute.
In Article 7(2)(i) of the Rome Statute, the definition of enforced disappearance as a crime against humanity, requires that detention is “…with the intention of removing them from the protection of the law for a prolonged period of time.” (emphasis mine) Clearly, the Rome Statute is for the purpose of establishing individual criminal responsibility, rather than that of the responsibility of a state, as is the aim with human rights treaties. There is no case decided before the International Criminal Court regarding the crime of enforced disappearance, and therefore the manner in which the temporal element may be interpreted is as yet unclear.
However, this issue has come up for consideration before the Human Rights Committee (‘HRC’) (in determining violations of the International Covenant on Civil and Political Rights). While the ICCPR does not use the words “enforced disappearance”, the view of the HRC is that this “unique and integrated series of acts” constitute a “continuing violation” of the ICCPR (Katwal v. Nepal, para. 11.3). What is fascinating is that the interpretation of the irrelevance of the temporal criteria in the context of the ICCPR has been mainly in light of Article 16 (“right to recognition as a person…before the law”), and not solely under the rubric of a violation of Article 9 (“arbitrary detention”). This relies on the General Comment on the right to recognition as a person before the law in the context of enforced disappearances, adopted in 2011, which draws the link between the continuing crime of enforced disappearance and Article 16 of the ICCPR.
However, the general comment does not itself make a reference to temporal considerations in its analysis, and rather, seems to be predicated on a significant time away (based on the discussion regarding legal considerations around the declaration of death, management of property etc.). Also, this interpretation comes in light of previous reliance of the HRC upon the Rome Statute definition, and therefore this is a departure from previous practice (Tharu v Nepal, Individual opinion of Committee member Olivier de Frouville). The Committee on Enforced Disappearances (‘CED’) in its views in Yrusta v. Argentina, has reaffirmed the lack of a fixed time frame for a crime of enforced disappearance, relying on the 2007 General Comment (quoted above).
Furthermore, a joint statement by the CED and the UNWGEID reiterates that regardless of duration, any such detention should be viewed as an enforced disappearance in the context of the ICPPED. The need for a greater focus on the issue of short-term disappearances has also been flagged by the Council of Europe Commissioner for Human Rights in 2016.
The crime of enforced disappearance is particularly egregious as it not only targets individuals, but also has a chilling effect on the exercise of other fundamental freedoms. It impacts on the rights of the person disappeared, as well as the rights of the families to know the fate of their family members.
A new variation is the increasing use of short-term disappearances, to give the illusion of legality. The trend of legal interpretation – despite diverging views at the HRC in Aboufaied v. Libya and Tharu v Nepal – is that the temporal element is not required for the definition of an enforced disappearance, and in fact hinders the protection of individuals. It would seem that legal interpretation is playing catch up with the (mal)practice of states.