Consequences of the Lack of Criminalization of Enforced Disappearance at the Domestic Level

Abstract

Abstract The obligation to codify enforced disappearance as an autonomous offence under domestic criminal legislation is well established in international law and jurisprudence, and it responds to the need to adequately comprehend and address the extraordinarily complex nature of this crime. Yet very few states abide by such an obligation. When called upon to explain this failure, those lacking a separate offence in their domestic legislation — including Italy — argue that other offences (e.g. kidnapping, abduction, torture, or illegal deprivation of liberty) are adequate. The article analyses the Italian experience with investigations and proceedings conducted in the absence of an autonomous offence of enforced disappearance. They concern enforced disappearances perpetrated in the context of the Operación Cóndor in Latin America where the victims were Italian nationals, requests for extradition concerning cases that amount to enforced disappearance, and enforced disappearances committed in the realm of operations of ‘extraordinary renditions’. The consequences of the lack of criminalization of enforced disappearance include the undue fragmentation of responsibility when pressing charges; challenges concerning the evidentiary criteria, especially with regard to the mental element; the application of tight statutes of limitation; and the failure to adequately implement the aut dedere aut judicare principle, ultimately resulting in an increased rate of impunity.