Enforced Disappearances in International Law

by

Elisenda Calvet Martínez

• LAST REVIEWED: 29 May 2019
• LAST MODIFIED: 29 May 2019
• DOI: 10.1093/obo/9780199796953-0181

Introduction

Enforced disappearances is a multiple and ongoing violation of human rights that is often associated with Latin America; however, it is neither the exclusive patrimony of any single region of the world nor a practice of the past. During the Second World War, the Nazis exercised the practice of enforced disappearances through the Night and Fog Decree by transferring the detained persons from occupied territories to the Reich without any contact with the outside nor could they be visited by their families. At present, the phenomenon of enforced disappearances is presented in more complex contexts like humanitarian crises, migration, and organized crime as well as within the framework of the “war” against terrorism. Since its creation in 1980, the UN Working Group on Enforced or Involuntary Disappearances (WGEID) has received more than 55,000 cases, of which more than 44,000 remain unresolved and affect more than 107 countries. Enforced disappearance can be defined as a deprivation of liberty by agents of the state or by persons with its support or authorization, followed by the refusal to acknowledge the detention or by the concealment of the fate and whereabouts of the disappeared person. In this sense, children have also been the objects of enforced disappearance either because their parents were subjected to enforced disappearance or they were born in captivity to a mother subject to enforced disappearance. The anguish and stress of the families due to the uncertainty of the fate and whereabouts of the disappeared have been considered by the international mechanisms of human rights as an inhuman treatment and therefore have been considered direct victims of enforced disappearance. As a result, the relatives have the right to know the truth about the fate and whereabouts of the disappeared person and, in the case of death, the right to recover the remains. In international human rights law, there are three instruments that specifically address this practice, namely, the 1992 UN Declaration on the Protection of All Persons from Enforced Disappearances, the 1994 Inter-American Convention on Forced Disappearance, and the 2006 UN International Convention on the Protection of All Persons from Enforced Disappearances that created the Committee on Enforced Disappearance. Moreover, the prohibition of enforced disappearance is a customary humanitarian law rule applicable to both international and non-international armed conflict, and the widespread practice of enforced disappearance constitutes a crime against humanity and has been incorporated at the 1998 Rome Statute of the International Criminal Court.

General Overviews

As a multiple violation of human rights, the practice of enforced disappearance has been addressed traditionally by international human rights law, and that is the approach of Pérez Solla 2006, which examines the main rights affected like the right to life, the right to personal integrity, the right to personal liberty and security, and the right to recognition as a person before the law. However, this heinous crime has also been outlawed by international criminal law and by international humanitarian law. Therefore, Ott 2011 is very useful because it includes the different branches of international law that deal with enforced disappearances. One of the key features of enforced disappearances is that this crime is often perpetrated by agents of the state; consequently, the duties of the state to prevent this practice and to investigate the authors of this crime become more relevant, and this is the object of Vermeulen 2012. The International Committee of the Red Cross has been dealing with missing persons in a context of armed conflict and internal violence for a long time, and Special Issue: Missing Persons gives an overview on the topic from the international humanitarian law perspective.

• Ott, Lisa. Enforced Disappearance in International Law. Cambridge, UK: Intersetia, 2011.

  An exhaustive analysis of enforced disappearances from the perspective of different areas of international law such as human rights law, humanitarian law, and international criminal law that also includes a detailed study of the relevant case law of international human rights bodies.

• Pérez Solla, Maria Fernanda. Enforced Disappearances in International Human Rights. Jefferson, NC: McFarland, 2006.

  The book contains an in-depth analysis of the human rights violated with enforced disappearances such as the right to life, right to liberty and security of the person, the right to human treatment, and the right to recognition as a person before the law. It also includes many references of the main international case law.

• Special Issue: Missing Persons. International Review of the Red Cross 848.848 (December 2002).

  The International Committee of the Red Cross has been working on missing persons as a result of armed conflict or internal violence for a long time, and this special issue provides an overview, from the international humanitarian law perspective, of the main concerns of the institution, such as protection work and the restoration of family links and support for the families of the missing persons.

• Vermeulen, Marthe Lot. Enforced Disappearance: Determining State Responsibility under the International Convention for the Protection of All Persons from Enforced Disappearance. Cambridge, UK: Intersentia, 2012.

  This work gives an overview of the phenomenon of enforced disappearances with an interesting analysis of the impact of enforced disappearances, not only for the disappeared person and the relatives of the victim but also for the society as a whole. Since this crime is often perpetrated by agents of the state, the author explores how to determine state responsibility and, specifically, the duty to prevent enforced disappearances as well as the duty to investigate, prosecute, punish, and provide reparation.