Blurring the Lines – Non-State Actors as Perpetrators of Enforced Disappearance

[Ozan Yildirim works as an Expert Associate in the Humanitarian Affairs Section of the Permanent Mission of Switzerland to the UN in Geneva and holds an LL.M. in International Humanitarian Law and Human Rights from the Geneva Academy]

This post is written in the author’s personal capacity.

When it comes to the disappearance of individuals, non-State actors around the world are increasingly implicated as perpetrators, such as in the context of human trafficking, migration, armed conflicts, as well as other situations of violence. Further noteworthy is the fact that States have been using non-State actors as proxies to forcibly disappear individuals, in order to conceal their involvement, as well as shift and evade responsibility for their human rights violations. Disappearances of individuals under such circumstances are marked by ambiguity, blurring the line between ‘simple’ criminal acts and human rights violations in the form of enforced disappearances. 

Enforced disappearances are a rather unique form of human rights violation, due to victims not simply going missing for any reason, but rather being purposefully made disappeared. From the traditional perspective of international human rights law (IHRL), enforced disappearances require some degree of State agency, with the conduct usually being attributed to the public authorities or to persons or groups of persons acting with the authorization, support or acquiescence of the State. Nevertheless, considering their increased involvement in human rights violations and influence over territories and populations, the role of non-State actors in enforced disappearances merits further attention.

The intention of this post is to explore under which circumstances non-State actors can commit enforced disappearances. In a first step, the issue of non-State actors perpetrating enforced disappearances on behalf of States is addressed, before turning to situations where such actors operate independently of the de jure sovereign. This includes examining instances where non-State actors de facto exercise effective control over a territory and population or assume governmental functions, as well as the implications of recognizing their human rights obligations in such contexts.

Doing the Dirty Work – Non-State Actors as Proxies of States in Enforced Disappearances

The view that enforced disappearances entail State agency is enshrined, among others, in Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPED), which follows the traditional understanding under IHRL of States bearing human rights obligations towards individuals. While private entities such as non-State actors are excluded from the definition, in order to not ‘dilute’ the violation as well as responsibility of the State, Article 2 ICPED acknowledges the possibility of enforced disappearances being conducted by ‘persons or groups of persons that are not agents of the State’ provided they are acting with the ‘authorization, support or acquiescence’ of the public authorities.

The degree to which a State needs to be involved for a disappearance through a non-State actor to amount to an enforced disappearance proper remains a source of controversy. Nevertheless, human rights bodies – both the regional human rights systems as well as the human rights mechanisms at the UN – have established in numerous cases (see here, here and here) that the wrongful conduct of non-State actors may raise the responsibility of a State, if a sufficient agency relationship is given – either as de facto organs or de jure (de facto) organs of the public authorities in the sense of the customary rules enshrined in the Articles on the Responsibility of States for Internationally Wrongful Acts. Hence, when non-State actors act with the required degree of State involvement, such an act falls under the definition of Article 2 ICPED and should be regarded as an enforced disappearance.

The Emerging View – Human Rights Obligations of Non-State Actors Acting Independently of States

While it is largely settled that non-State actors, when acting on behalf of and with ties to the State, are able to commit enforced disappearances, the question arises how to qualify such conduct when such entities act independently of public authorities. 

Under ‘normal’ circumstances, the abduction and consequent disappearance of an individual by a non-State actor would not qualify as an enforced disappearance, but rather as an abduction or kidnapping, falling within the realm of domestic criminal law. It is noteworthy though that under Article 3 ICPED, States still are under an obligation to investigate such acts, in order to bring perpetrators to justice. 

Much more controversial are the instances where the de jure State is absent due to having lost control over a territory, with disappearances through non-State actors occurring under such circumstances. This may, for instance, be the case during a non-international armed conflict, where civilians find themselves living under the control of armed non-State actors. One only has to think of the time when the Islamic State of Iraq and Syria (ISIS) gained effective control over large parts of north-western Iraq and Eastern Syria, exercising control over 10 million people, with many individuals disappearing and still being unaccounted for. Due to the increase of disappearances occurring through non-State actors exercising government-like functions or de facto control over territories and populations, in 2019, the Working Group on Enforced and Involuntary Disappearances (WGEID) made the decision to expand its mandate, documenting disappearances of such nature as acts tantamount to enforced disappearances. This change in its modus operandi can be seen as an attempt to not dilute enforced disappearances with regard to the responsibility of States in human rights violations, but at the same time also a recognition of the role of specific non-State actors in the disappearances of individuals.

There is an emerging view that non-State actors can be bearers of human rights obligations under certain circumstances. Specifically, with regard to armed conflict situations, scholars (see here) as well as bodies of the United Nations (see here) have answered this question in the affirmative: non-State actors, such as armed groups, can be seen as being bound by (certain) human rights obligations in instances when they de facto exercise control over a territory and population or assume governmental functions, in the absence of the legal sovereign. Such a view comes with significant merits, since IHRL may cover aspects of civilian life which are not covered by legal regimes such as international humanitarian law, while at the same time ensuring the accountability of non-State actors for (potential) human rights violations.

Nevertheless, while non-State actors can be seen as bearers of IHRL obligations, according to the Committee on Enforced Disappearances (CED) (in line with the position of the WGEID), a disappearance occurring under such circumstances is still to be seen as falling within the scope of Article 3 ICPED, establishing an act tantamount to, but not an enforced disappearance in itself – which contrasts with the emerging view. While the CED in its very own Statement described the ICPED as a living instrument which is to be interpreted “in the light of present-day conditions and of the evolution of international law” (para. 10), it seems not to be comfortable with the notion of conferring human rights obligations to non-State actors, even when they take up State-like functions.

The view of the CED – both from a factual and legal perspective – raises a number of issues: describing the disappearance of a loved one as being tantamount to has less impact than describing it as an enforced disappearance proper, and may leave victims with a sense of dissatisfaction of having their agony recognized. Victims such as the family members and loved ones may also be prevented from accessing legal mechanisms ensuring reparation and remedies, despite being fully-fledged victims of such offences. Furthermore, in a situation where the State has lost control over part of its territory, Article 3 ICPED still leaves the question open as to who is ultimately responsible for the human rights violations – the de jure government, which is absent, or the non-State actor de facto ruling? Taking into account the mandate of human rights bodies (predominantly) being limited to IHRL, such an approach poses significant constraints for victims of enforced disappearances ‘not proper’ when trying to make a claim for the violations suffered and to hold perpetrators accountable – with the question remaining that if we accept the full legal responsibility of non-State actors for enforced disappearances, whether international human rights mechansisms, in their current state, are adequately equipped to deal with such entities.

Concluding Thoughts

Taking into account the emerging view, there is ground to argue that disappearances occurring through non-State actors exercising de facto governmental functions or having effective control over a territory and its population should in fact be covered by Article 2 ICPED, establishing enforced disappearances proper. This raises another question though: whether a non-State actor gaining control over a territory has inherited the legal obligations conferred upon the displaced sovereign State through an international treaty such as the ICPED via default (which I would tend to answer in the affirmative). 

To avoid complicating things, it suffices to say the prohibition of enforced disappearances – like for many other serious human rights violations – is not confined within the boundary of the ICPED, but rather to be viewed as reflecting customary law or even ius cogens, consequently leading to the accountability of any entity with the potential to commit such a serious human rights violation. This view is especially important when considering armed conflict situations, where armed non-State actors would otherwise only be bound by the limited prescriptions of international humanitarian law applicable to the conflict – with violations of international law lacking the necessary nexus to the conflict otherwise going unaddressed. 

In conclusion, it can be argued that, when a non-State actor is able to de facto exercise control over a territory and its population or assume government-like functions, with the de jure sovereign being absent, disappearances occurring under such circumstances are to be regarded as enforced disappearances proper – both from a practical and legal perspective. Viewing non-State actors as bearers and direct addressees of human rights obligations (when the conditions are met) ensures not only a crucial layer of protection for individuals, but also creates additional incentives to implement as well as uphold the rule of law and allows to hold all (potential) perpetrators of human rights violations accountable.

Photo attribution: Unsplash