The International Convention on the Protection of All Persons from Enforced Disappearances (ICCPED) is the main international human rights convention addressing the issue of enforced disappearances. It covers the obligations upon a state within its domestic jurisdiction, as well as how States must cooperate to tackle enforced disappearances. This article will examine how the ICPPED came about, and whether it has achieved its objectives. It will also critically analyse whether the definitions present within the ICPPED are adequate for the complete eradication of enforced disappearances around the world.
The History of the ICPPED
The ICPPED process began with a Declaration on the Protection of All Persons from Enforced Disappearance passed in 1992. This was followed by the Commission on Human Rights forming an open-ended working group to draft a legal document pertaining to this issue.
Reports by individual experts in this working group on the gaps in the international legal framework were published in 2001. The reports stated issues including the lack of recognition of a specific human right not to be subjected to enforced disappearance; the absence of a legally binding universal obligation on the applicability of universal jurisdiction; and many loopholes regarding preventive measures. The ICPPED’s drafting in 2006 was the culmination of persistent advocacy by non-governmental organisations (NGOs) and the families of victims of enforced disappearances across various international platforms.
At the ICPPED’s inception in 2010, it received 56 ratifications. As of 2023, the ICPPED has 72 ratifications, with some reservations from influential States, France and Germany. Other major States that have not signed the Convention are the United States, Canada, Australia, Russia and China.
Obligations under the ICPPED
The ICPPED is dedicated to safeguarding individuals from all forms of involuntary disappearances, irrespective of whether they occur within one’s residence, locality, nation, or general geographical vicinity. Enforced disappearances have been defined in Article 2 of the ICPPED as
the 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.
A distinctive feature of this Convention is its application even in times of armed conflict or national emergencies under Article 1(2). Furthermore, the ICPPED calls upon States to acknowledge that enforced disappearance, when practised on a widespread scale, constitutes a crime against humanity as per Article 5. Thus, it reinforces the seriousness of the issue by making it a non-derogable right and a characteristic of grave human rights violations tried under international criminal law.
The main obligation under Article 6 of the ICPPED is to criminalise enforced disappearances and to hold those who participate in these activities criminally liable. These include those who have caused someone to disappear, those who have enabled the perpetrators to commit the offence, and those who consciously have disregarded information about an enforced disappearance that happened or failed to take adequate measures to prevent it from happening in the first place.
The ICPPED subsequently also requires States to afford proper legal assistance to each other in the search for disappeared persons, mandating States to conduct thorough investigations into all enforced disappearances within their territory and then extradite alleged perpetrators for trial in the appropriate jurisdiction (Article 11). Hence, it is imperative to take steps within the national legal framework in alignment with the definition of enforced disappearances outlined in Article 2 and the mandate to criminalise this offence as stipulated in Article 4. These measures are essential in enabling the ICPPED to realise its complete potential.
Interestingly, the ICPPED also allows these offences to be prosecuted under different international criminal law mechanisms. As mentioned before, according to Article 5, if the offence is ‘widespread and/or systematic’, it may constitute a crime against humanity. Consequently, such offences may be triable under international criminal legal mechanisms, such as the International Criminal Court (ICC). However, this is also dependent upon whether the ICC is able to exercise jurisdiction over the crimes committed. These can be prevented if the crimes are committed by a person who is not a national of a State Party to the Rome Statute, or if the State in which the crimes take place is not party to the Rome Statute (Article 12, Rome Statute).
Case Law
Velazquez Rodriguez v Honduras
A landmark case on enforced disappearances was the case of Velazquez Rodriguez vs Honduras in the Inter-American Court of Human Rights (IACtHR). The case involved an incident that occurred during the US invasion of Honduras when the Sandinista forces were rebelling against the illegal occupation of their country. The IACtHR recognised patterns in these disappearances that included distinctive patterns of the forces in question, including the use of civilian clothing, disguises, and unmarked vehicles (para 2). The Court further found that lawyers and judges who tried to execute writs of habeas corpus were denied knowledge of the events and that authorities either denied or failed to adequately undertake an investigation into the disappearances. This particular case garnered significant attention and played a pivotal role in recognising enforced disappearances as a rights issue of grave concern.
Katwal vs Nepal
Another case of enforced disappearance was the case of Katwal v Nepal. The Supreme Court of Nepal found the military guilty of the arbitrary detention and subsequent death of Chakra Bahadur Katwal, the headmaster of a local secondary school. However, there was no State action taken to locate him. Subsequently, a complaint was made to the United Nations Human Rights Committee (HRC), asking it to recognise the grave violations of rights under the International Covenant on Civil and Political Rights (ICCPR). These rights included the right to life (Article 6) and the protection from torture cruel, inhumane and degrading treatment or punishment (Article 7), safeguards to arrest and detention (Article 9), and equal recongition before the law (Article 16). Because Nepal is not a State Party to the ICCPED, the jurisdiction of the HRC was invoked.
The Committee found that the complaint was admissible, stating that his wife had exhausted all available remedies available to her under national law, and hence could seek international legal remedies. The Committee held that although the ICCPR does not mention ‘enforced disappearance’ in its text, enforced disappearances, such as the one in this case, ‘constitutes a unique and integrated series of acts that represents continuing violation of various rights recognized in that treaty’ (para 11.3). The Committee found Nepal to be in violation of Article 6, 7, 9 and 16 of the ICCPR (para 12).
Yrusta v Argentina
In Yrusta v. Argentina, the Committee on Enforced Disappearances (‘CED’) explained the lack of a fixed time frame for a crime of enforced disappearance. The case concerned whether the deprivation of the liberty of a person without providing information about his fate and whereabouts for a period over seven days constituted ‘enforced disappearance’ within the meaning of Articles 1 and 2 of the ICPPED. The Committee determined that the act of detaining an individual without disclosing their location qualifies as a form of concealing the person’s fate and whereabouts. They found that Mr. Yrusta being held incommunicado (not able or allowed to have communication with other people) from his family, along with the acts to which Mr. Yrusta was subject over the period of more than seven days following his transfer to Santa Fe, constituted an enforced disappearance, in violation of Articles 1 and 2 of the Convention (paragraph 10.4). The Committee found that this action resulted in the individual being placed beyond the protection of the law, thereby constituting enforced disappearance.
Criticism of the ICPPED
Requirements of disappearance
There is a lack of consensus on how long a person needs to be held in secret and incommunicado for the crime to constitute an enforced disappearance, as it is not mentioned in the definition of the offence. In a recent report by the Working Group on Enforced or Involuntary Disappearances (WGEID), the panel expressed ‘frightening alarm’ at the increasing cases of short-term disappearances in multiple countries across the globe. Short-term disappearances can occur for the purpose of silencing an individual or not letting certain ideas or conspiracies become mainstream. Such practices are often used against lawyers, activists and other political dissenters. However, short-term disappearances are not considered as such, but rather mere cases of abduction or kidnapping, despite the other elements of ‘enforced disappearances’, such as State involvement.
According to the UN Office of the High Commissioner of Human Rights (OHCHR), in a general context, State authorities often present these cases as detentions carried out for investigative reasons or to establish the identity or background of the detained individual (para 3). On many occasions, they stress that holding individuals in incommunicado detention under such circumstances may be necessary and is not in violation of international human rights law. In other instances, States outrightly deny that any deprivation of liberty has occurred. This notion is often used preventively by States under the realm of state security as some of the most stringent laws under most local legal systems are counter-terrorism laws. Hence, in most cases, whenever the State accepts accountability for the disappearance of an individual, it makes use of its counter-terrorism law present in the country to justify the act, all in the guise of national security (para 2). The Working Group has acknowledged this as States are often under the ‘false and pernicious belief that [disappearances] are a useful tool to preserve national security and combat terrorism or organised crime’ (para 39).
Such disappearances have reverberating effects. Both the WGEID and the Inter-American system have recognised that the impact of enforced disappearances does not stop with the disappeared person, but rather also harms the family for every minute they have to spend without the disappeared individual. Unfortunately, as admitted by the Committee in Yrusta v Argentina above, the lack of a fixed time frame still remains a pertinent issue in the realm of enforced disappearances. It further clarified that ‘In order to constitute an enforced disappearance, the deprivation of liberty must be followed by a refusal to acknowledge such deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person’ (para 10.3). Thus, if the State does not deny the detention, it does not fall under the ambit of ‘enforced disappearances’.
Non-state actors
Furthermore, the scope of the definition under Article 2 does not encompass enforced disappearances by non-state actors. During the drafting process, there were discussions about the prospect of broadening the definition in Article 2 to incorporate non-State actors. Some delegations advocated for a definition extending international criminal liability for enforced disappearances to non-State actors. However, there were reservations to this as some States believed that this would, in essence, exonerate States of their primary duty to respond to and prevent acts of enforced disappearances.
One issue that has often been highlighted is the requirement under Article 2 for there to be some sort of State-authorised action or support for the purposes of this Convention: ‘by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State.’ One particular challenge may lie in the absence of the necessary political will to hold individual perpetrators, particularly those affiliated with the State, accountable under domestic criminal laws. Nevertheless, the ICPPED primarily binds State actors to prevent enforced disappearances.
Non-state actors can be subject to criminal responsibility under international criminal law for acts of enforced disappearance that meet the threshold of constituting a crime against humanity, rather than for acts of enforced disappearance as standalone offences. This limitation is regrettable, as there are certain contexts in which non-state actors are responsible for numerous cases of enforced disappearance. In cases where the threshold of a crime against humanity is not met, such offences will not be considered ‘enforced disappearances’. Such perpetrators may only be liable under any national legislation on abduction or kidnapping; however, in States where non-State armed groups have effective control over the government, such actors may forcibly disappear dissenters with impunity.
Conclusion
The ICPPED was a major step forward in recognising the right against enforced disappearance as separate from unlawful detention. However, it does present some shortcomings. The definition may be interpreted to preclude short-term disappearances and create a high threshold for non-State actors to be punished under international criminal law. The ICPPED’s success relies on the political will of the government in power to enforce its international obligations and implement the necessary legal measures to prevent its use. Therefore, the ICPPED is indeed a remarkable feat. However, in light of the discussion above, it seems that its application to the above problems requires greater clarification and greater efforts by the global community.
Centre for Human Rights (CHR) blog
