Enforced Disappearances in International Law

Abstract

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.