...widespread and particularly grave phenomenon of enforced disappearance. In particular, it is hoped that the Convention will increase the accountability of individual perpetrators of acts of enforced disappearance by extending international criminal jurisdiction to these acts. This article examines the need for the new Convention by analysing the shortcomings of existing avenues for holding perpetrators of enforced disappearance responsible under international criminal law, and by identifying gaps in the criminalisation of enforced disappearances. The article then examines key provisions of the Convention in light of these existing gaps and shortcomings, and assesses the likely role and effectiveness of the new Convention in bringing individual perpetrators to justice.]



CONTENTS I Introduction II Nature and Prevalence of Enforced Disappearance III Shortcomings of the Current International Legal Framework in Holding Individuals Criminally Responsible A Enforced Disappearance as a Crime against Humanity 1 Criminalisation of Enforced Disappearance 2 Shortcomings in Conceptualising Enforced Disappearance as a Crime against Humanity B Enforced Disappearance as Torture 1 When Will Enforced Disappearance Amount to Torture? 2 Shortcomings in Conceptualising Enforced Disappearance as Torture C Prevailing Gaps in Criminalisation IV Analysis of the International Convention for the Protection of All Persons from Enforced Disappearance A The Need for and Advantages of Drafting a Separate Convention B Criminalising Per Se Acts of Enforced Disappearance C Definition of Enforced Disappearance D Mechanisms for Holding Individuals Criminally Responsible V Conclusion Some men arrive. They force their way into a family's home ... They come at any time of the day or night, usually in plain clothes, sometimes in uniform, always carrying weapons. Giving no reasons, producing no arrest warrant, without saying who they are or on whose authority they are acting, they drag off one or more members of the family towards a car, using violence in the process if necessary. Once the commotion is over, those left behind can only wonder. (1)

I INTRODUCTION

Enforced disappearance has been labelled 'a particularly heinous violation of human rights' (2) and 'one of the gravest crimes that can be committed against a human being'. (3) The act of enforced disappearance typically involves the abduction, arrest or detention of an individual--usually a perceived political opponent--by members of a state-sponsored military group, and a deliberate denial by authorities of any knowledge of the victim's arrest, whereabouts, or condition: the individual effectively vanishes. Enforced disappearances are a 'doubly paralysing form of suffering'. (4) The victim is removed from the protection of the law, and is often subjected to torture and extrajudicial execution. In addition, the victim's family and friends are deliberately denied knowledge of the individual's arrest or detention, and are 'subjected to slow mental torture' (5) as they wait, often for years and sometimes forever, to be informed of the victim's fate. Enforced disappearances were used by the Nazi regime during World War II to deliberately spread terror throughout the population and to suppress dissent. (6) They were also employed extensively as a 'virulent form of state terrorism' by several governments in Latin America throughout the 1960s and 1970s. (7) Sadly, enforced disappearances have become 'a truly universal phenomenon', believed to be occurring in approximately 90 countries, in all regions of the world and affecting tens of thousands of people. (8)

The United Nations Working Group on Enforced or Involuntary Disappearances ('UN Working Group') (9) claims that impunity is perhaps the most significant factor contributing to the phenomenon of enforced disappearance. (10) It recommends bringing individuals to justice for such acts as a crucial measure in helping to prevent their occurrence. (11) Despite this recognition, and despite international condemnation of enforced disappearances, (12) the proclamation of the UN Declaration on the Protection of All Persons from Enforced Disappearance in 1992, (13) and the ratification of a regional Inter-American convention, (14) enforced disappearances have not, to date, been the subject of a specific, binding, global instrument. Consequently, measures in international law for holding individuals criminally responsible for acts of enforced disappearance have been limited. However, since 1999 the UN Commission on Human Rights has been considering a Draft International Convention on the Protection of All Persons from Enforced Disappearance. (15) The final draft, (16) which was completed in September 2005, (17) has been heralded as 'a significant victory for the human rights movement' (18) and as 'an extremely important development in the fight against forced disappearances'. (19) It has been adopted by the UN Human Rights Council, and is expected to be adopted by the General Assembly at its 61st session later this year, and to be opened subsequently for signature and ratification. (20) The recognition that enforced disappearances warrant a specific, binding, international convention is indeed a significant achievement and signals strong international condemnation of these acts. However, on a practical level, how effective is the International Convention for the Protection of all Persons from Enforced Disappearance (21) likely to be in enforcing the standards it sets? In particular, how will it add to the existing measures available for holding individuals criminally responsible for perpetrating acts of enforced disappearance?

This article will assess the need for and likely role of the new Convention in holding individuals criminally responsible for acts of enforced disappearance. First, the nature and prevalence of enforced disappearance will be outlined. Second, existing international legal mechanisms for holding individuals criminally responsible for enforced disappearance will be analysed in order to identify current gaps in the international legal regime and to assess the need for a separate convention. (22) Finally, the Convention itself will be examined in order to determine its likely effectiveness in filling existing gaps in protection and in extending the existing measures available for holding individuals criminally responsible for acts of enforced disappearance. This article will argue that the Convention expands and cements the international prohibition on enforced disappearance by including provisions which effectively criminalise acts of enforced disappearance in international law.

II NATURE AND PREVALENCE OF ENFORCED DISAPPEARANCE

The first documented use of enforced disappearance was pursuant to the Nacht und Nebel (Night and Fog) Decree declared by the Nazi regime in 1941. (23) Under the Decree, perceived members of resistance movements in occupied territories were arrested and secretly transferred to Germany 'in the blackness of night'. (24) The fundamental element of this procedure was to deny family members and the wider public any knowledge as to the whereabouts and eventual fate of the victim. (25) This was intended to have a deterrent effect on resistance activities by creating widespread fear and anxiety among relatives of 'disappeared' individuals and by intimidating the public. (26) Persons arrested and transferred to Germany were held incommunicado in cruel and inhuman conditions, prosecuted without due process, and were frequently sentenced to death and executed. (27) The procedures took place secretly and family members were rarely notified as to the individual's fate. (28) It is thought that approximately 7000 persons were secretly arrested, transferred and likely executed under the Decree. (29)

Enforced disappearances were later used as 'a systematic policy of State repression' starting in Guatemala and Brazil in the 1960s and 1970s. (30) They came to be practised extensively throughout Latin America in the 1970s and 1980s, affecting tens of thousands of people. (31) Governments would routinely abduct people, hold them in clandestine prisons, subject them to torture and often execute them without trial. The bodies were frequently hidden or destroyed 'to eliminate any material evidence of the crime and to ensure the impunity of those responsible'. (32) The practice of enforced disappearance was particularly widespread in Argentina, during the so-called 'dirty war'. Argentina's National Commission on Disappeared People, established in 1983, has recorded 8960 cases of enforced disappearance and estimates that the actual figure could be higher. (33) Disappearances were also prevalent in Chile, (34) Peru, (35) El Salvador, (36) Colombia, (37) Uruguay (38) and Honduras. (39) The broad objective in practicing enforced disappearances during this period was to dispose of political opponents secretly (40) while evading domestic and international legal obligations, (41) and to 'sow intimidation' into the fabric of society. (42)

The use of enforced disappearances was by no means limited to the Latin American region in the 1980s. In Iraq, for instance, Amnesty International estimates that approximately 100 000 Kurdish people were 'disappeared' under 'Operation Anfal', most during a four month period. (43) Disappearances also 'reached catastrophic proportions' in Sri Lanka in that decade, following the creation of a specialised police commando unit to respond to insurgents in the south. (44) In addition, Government forces used enforced disappearances to target 'Tamil separatists' in the north-eastern region of the country. (45)

Unfortunately, since the 1980s, the use of enforced disappearance has increased exponentially and has spread throughout all regions of the world. (46) According to the UN Working Group, enforced disappearances commonly occur today within states suffering from internal tensions or conflict, such as Nepal, Colombia, the Russian Federation and Sudan. (47) Acts of enforced disappearance have been particularly prevalent in Nepal and the Russian Federation, and provide a contemporary illustration of the nature of these acts and the context in which they occur. Human Rights Watch has reported that in Nepal, enforced disappearances have 'reached crisis proportions'. (48) The use of enforced disappearances has arisen as a result of the 'Nepalese people's war', declared in 1996 by the Communist Party of Nepal (Maoist) ('CPN-M'). Instances of enforced disappearance have dramatically increased since 2001, when the Nepalese Government deployed the Nepalese Army to conduct counterinsurgency operations against Maoist insurgents. (49) Enforced disappearances have been 'an integral part of Nepal's counter-insurgency campaign', (50) and have increasingly been practiced by members of the Nepalese Army (51) against perceived members of the CPN-M or affiliated groups. (52) Human Rights Watch has received reports of over 1200 people who have been 'disappeared' since 2000. (53) Enforced disappearances have been carried out with impunity, as civilian authorities have issued denials and have failed to hold any senior officers accountable. (54) In addition, Maoist insurgent forces have themselves perpetrated numerous enforced disappearances against perceived 'informers' or 'enemies of the revolution'. (55)

In the Russian Federation, Human Rights Watch estimates that between 3000 and 5000 people have been 'disappeared' in Chechnya at the hands of Russian military units and 'pro-Moscow Chechen forces'. (56) Individuals are targeted on account of their perceived affiliation with Chechen rebel fighters, are secretly taken into custody by state agents, and are often tortured and summarily executed. (57) A recently identified 'trend' in the practice of enforced disappearance has also occurred in the context of the 'war on terror'. Amnesty International and Human Rights Watch have reported the use of enforced disappearance by the US Government, with perceived members of terrorist organisations being arrested and apparently held in secret detention centres. (58)

III SHORTCOMINGS OF THE CURRENT INTERNATIONAL LEGAL FRAMEWORK IN HOLDING INDIVIDUALS CRIMINALLY RESPONSIBLE

Enforced disappearance has been labelled a 'multiple human rights violation'; (59) that is, an act of enforced disappearance can amount to a violation of several rights contained in the International Covenant on Civil and Political Rights, (60) or its regional counterparts. (61) The UN Human Rights Committee ('HRC'), (62) the Inter-American Court of Human Rights ('IACHR') (63) and the European Court of Human Rights ('ECHR') (64) have found that an act of enforced disappearance can amount to a violation of: a person's right to liberty and security, the right to life, the right to humane conditions of detention, and/or the right to freedom from torture, cruel inhuman or degrading treatment or punishment. These human rights instruments impose obligations on states with respect to their citizens. However, although they impose a duty on the part of state governments to investigate acts of enforced disappearance and to prosecute individual offenders under domestic law, (65) human rights violations do not per se lead to the attribution of individual criminal responsibility under international law. Rather, a 'routine' human rights abuse is criminalised under international law where it is found to meet the threshold requirements of a crime against humanity, or where it falls within the definition of a human rights violation that has specifically been criminalised in an ad hoc international instrument such as the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment ('CAT'). (66)

Therefore, whilst enforced disappearances are not currently the subject of a specific, binding, global instrument and have not been criminalised explicitly in international law, (67) there are several existing avenues by which individuals, in certain circumstances, may be held criminally responsible under international law for perpetrating such acts. These existing avenues will now be analysed in order to determine the existence of gaps in the criminalisation of enforced disappearance, and ultimately to assess the need for the Convention and to consider the suitability and likely effectiveness of its provisions.

A Enforced Disappearance as a Crime against Humanity

Whilst enforced disappearance has not been criminalised explicitly under international law, the practice has been criminalised to the extent that it constitutes a crime against humanity. Thus, where an act of enforced disappearance meets the threshold requirements of a crime against humanity, the perpetrator may be held criminally responsible at international law. The modern notion of a crime against humanity was developed during the International Military Tribunal trials in Nuremberg. (68) Crimes against humanity were defined as 'murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecution on political, racial or religious grounds'. (69) Whilst the Tribunal originally linked crimes against humanity to armed conflict, this connection has since been severed, (70) and crimes against humanity may now occur both in times of armed conflict and in times of peace.

I Criminalisation of Enforced Disappearance

Under the Rome Statute of the International Criminal Court, (71) enforced disappearance has been declared a crime against humanity 'when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack'. (72) Enforced disappearance is defined as

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. (73)

According to the International Law Commission, the inclusion of enforced disappearance in the Rome Statute as a crime against humanity (74) was due to 'its extreme cruelty and gravity'. (75) Indeed, its inclusion appears to have furthered a general trend, both internationally and regionally, of recognising enforced disappearance as being capable of constituting a crime against humanity. This was recognised by the Organization of American States, which declared in several early resolutions that an enforced disappearance can amount to a crime against humanity. (76) The IACHR further stated, in 1988, that '[i]nternational practice and doctrine have often characterized disappearances as a crime against humanity, although there is no treaty in force which is applicable to the states parties to the Convention which uses this terminology'. (77) The Parliamentary Assembly of the Council of Europe has also recognised that enforced disappearance can amount to a crime against humanity. (78)

The UN General Assembly proclaimed in the Enforced Disappearance Declaration that 'the systematic practice' of enforced disappearance 'is of the nature of a crime against humanity'. (79) Whilst the instrument is non-binding, it evidences international consensus to criminalise enforced disappearances that are found to amount to a crime against humanity. This characterisation has been confirmed by the UN General...

NOTE: All illustrations and photos have been removed from this article.



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