Enforced Disappearances of Persons
The practice of enforced or involuntary disappearances of persons appeared during World War II with the Nacht und Nebel Erlass promulgated by Hitler, regulating systematic disappearance of Nazi Germany’s opponents. In the years 1960-1970 this practice took a particular dimension in Latin American military dictatorships and, more recently, in many other parts of the world (for example in Irak during Saddam Hussein’s regime).
In 1979, France presented the first resolution on enforced disappearances of persons, at the United Nations (UN) General Assembly (resolution 33/173). On February 29, 1980, the UN Commission on Human Rights established a working group responsible for examining “the questions related to enforced or involuntary disappearances of persons” (resolution 20.XXXVI). The affirmation of an international State responsibility in this matter arose a few years later when several individual complaints were lodged in front of the Human Rights Council and the Inter-American Court of Human Rights (see notably the famous Velasquez Rodriguez decision of July 29, 1988, where the Court set an important legal precedent defining the crime). Finally, the recognition of an international criminal responsibility of individuals in cases of enforced disappearances was symbolically expressed with the adoption, on December 18, 1992, of the UN General Assembly’s Declaration on the Protection of all Persons from Enforced Disappearances (resolution 47/133).
It has since then also been admitted that enforced disappearances, when committed in a widespread or systematic way, constitute a crime against humanity: the 1992 resolution (whose Preamble declares that “the systematic practice of such acts is of the nature of a crime against humanity”), followed by the Inter-American Convention on the Forced Disappearance of Persons adopted on June 9, 1994 (whose Preamble reaffirms that “the systematic practice of the forced disappearance of persons constitutes a crime against humanity”) recognize it respectively on the universal and regional level. Like apartheid, the crime of enforced disappearances of persons was later specifically acknowledged in the Statute of the first permanent International Criminal Court (ICC, established on July 17, 1998) as a crime against humanity (article 7 § 1 (i) of the ICC Statute). The crime is defined as follows: “the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time” (article 7 § 2 (i) of the ICC Statute). It should be noted that by including the notion of “political organization”, this formulation brings an important expansion of the traditional approach of enforced disappearances, according to which the crime can be committed only by State agents or with their consent or acquiescence. On the other hand, the scope of the incrimination is restricted by a new requirement: prosecution must prove the specific intent (dolus specialis) of the perpetrator to remove the victims “from the protection of the law for a prolonged period of time”.
Since December 20, 2006, the crime of enforced disappearances has been provided for in a specialized international convention (the International Convention for the Protection of All Persons from Enforced Disappearance): article 2 reaffirms the traditional definition of the crime (“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”) ; and article 5 states that “the widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law”.
HALL, C. K., 1999, “Enforced disappearance of persons”, in TRIFFTERER, O. ed., Commentary on the Rome Statute of the International Criminal Court. Observers’ Notes, Article by Article, Baden-Baden: Nomos Verlagsgesellschaft, 170-171.
Declaration on the Protection of all Persons from Enforced Disappearances adopted by the UN General Assembly on December 18, 1992 (resolution 47/133): http://www.undemocracy.com/A-RES-47-133.pdf
Inter-American Convention on the Forced Disappearance of Persons adopted on June 9, 1994: http://www.oas.org/juridico/English/Treaties/a-60.html
International Convention for the Protection of All Persons from Enforced Disappearance adopted on December 20, 2006: https://www2.ohchr.org/english/law/pdf/disappearance-convention.pdf
Trial Watch, https://trialinternational.org/