Graphic designed by Fiza Faheem
Enforced disappearance refers to the covert removal of an individual from society, either by State officials or by groups backed by the State. Typically motivated by the State’s desire to remove those who challenge the existing legal or governmental regime, human rights defenders are prime targets for such acts. Through the consideration of a case study from Honduras, current events in Sri Lanka, and historical context of the crime in Cuba, this article outlines the crime of enforced disappearance, and explores three key violations: the right to liberty, the right to fair trial, and the right to freedom from torture.
1. What is enforced disappearance?
Enforced disappearance refers to a situation where individuals are taken into custody either by State officials or by groups with the State's backing. They are then held in secret detention or otherwise denied their freedom, and their fate or whereabouts become unknown.
It may involve kidnapping someone and imprisoning them in a detention facility or another undiscovered location. The State can be involved in different ways. First, through governmental institutions like the police, military, or paramilitary organisations. Alternatively, smaller criminal organizations could be responsible for enforced disappearances, but they might carry out these disappearances on behalf of the State or in alignment with its interests. This creates an appearance of the State having no direct involvement in these criminal activities, allowing them to evade public scrutiny.
The UN’s International Convention for the Protection of All Persons from Enforced Disappearance (“UN Convention”) has defined three essential elements to enforced disappearance: State involvement, the infringement of rights through an arrest or detention, and the unwillingness to reveal the location of the missing person and admit any wrongdoing.
Regardless of which body is used, the removal of the individual is without any legal justification or acknowledgement. Besides lacking any legitimate reason to remove the individual, State officials would not even acknowledge that the affected person is missing or notify their family of their whereabouts. As a result, enforced disappearance not only violates the rights of the missing people but also causes emotional suffering for the victim's family because they are unsure of the location of their loved one and whether they are even alive.
2. Why would a State engage in enforced disappearance?
Enforced disappearance is usually motivated by the State’s desire to remove political dissidents or individuals, who challenge the existing legal or governmental regime. This makes individuals such as human rights defenders prime targets for removal.
Enforced disappearance has been wielded as a weapon to not only minimise the threat an individual poses, but to also instil a widespread sense of fear among the community. By fostering an environment of fear, the State can prevent others from challenging the status quo.
Enforced disappearance places the victim outside the reach of the law. This makes them vulnerable to ongoing torture and human rights abuses due to the lack of information. Governments take care to veil their involvement in the enforced disappearance, making it difficult for family members to gather viable evidence to pursue legal action.
3. Human rights violations caused by Enforced Disappearance
Enforced disappearance violates innumerable human rights. This essay explores three violations in particular: the right to liberty, the right to fair trial, and the right to freedom from torture.
a. Breach of the right to liberty
Enforced disappearance primarily violates the right to liberty. This right consists of defending a person’s autonomy from “unreasonable detention”. As individuals are arbitrarily detained without legal basis or due process, their abduction constitutes as a violation of liberty.
b. Violation of the right to fair trial
Victims of enforced disappearance also often implicitly suffer a breach of the right to fair trial. They are usually detained on the basis that they have committed crimes such as treason, but are not given the chance to defend themselves. Neither do they have access to legal counsel. In fact, they are often unaware of the charges against them. Instead, the State simply detains them, even when there is no concrete evidence of their criminal activity. This violates the presumption of innocence, a criminal law principle whereby every person is held as innocent until proven guilty. A victim’s family is in no better position to seek a fair trial on the victim’s behalf, since they do not know the very basis on which the victim has been detained.
c. Right to freedom from torture
Enforced disappearance also violates the right to freedom from torture while the individual is still held captive in the undisclosed location. Detained individuals are often subject to degrading treatment, which in turn causes physical and psychological harm.
4. Case study: Enforced disappearance in Honduras
As the first case considered by the Inter American Court of Human Rights (IACHR), Velásquez Rodríguez v Honduras (“Velásquez Rodríguez”) is a landmark case on enforced disappearance. Velásquez Rodríguez outlines the crime of enforced disappearance (as committed by Honduras) and applies the American Convention on Human Rights in relation to this crime. It should be noted that the arguments employed by the Inter-American Commission against Honduras largely mirror those developed in Section 4 above (i.e. Honduras had violated Rodríguez's right to liberty, right to humane treatment, and right to life).
Rodríguez was a university student engaged in politically sensitive conduct which the State believed to be a national security risk. While Rodríguez was alone in a carpark, he was abducted by armed men in a white Ford van. Rodríguez was detained in Barrio El Manchen of Tegucigalpa by the Honduran armed forces, who tortured Rodriguez while interrogating him.
a. Elements of enforced disappearance
The essential components of enforced disappearance are present in this case. First, the State was heavily involved in Rodríguez’s disappearance. The abduction was carried out by the Honduran armed forces, an extension of the State’s executive powers. Indeed, the IACHR found that the State was responsible for the acts and omissions of government agents - even if these agents had acted beyond their permissible authority or breach domestic law.
Second, Rodríguez had experienced violations of his rights. He was forcibly taken by State actors without legal justification, depriving him of the opportunity to defend himself against any allegations of threatening behaviour to the State. The courts concluded that the State breached Article 1 of the European Convention on Human Rights (ECHR), which obliges States to respect human rights. They found that Honduras did not adequately ensure the protection of human rights. This breach was specifically evident when the Commission requested the State, through Resolution 20/83, to conduct a thorough investigation to locate Rodríguez. The armed forces, the very entity accused of kidnapping him, conducted this investigation. This was highly inappropriate and raised suspicions of the withholding of information. The arbitrary detention of Mr. Rodríguez was found to violate Article 7, while the "prolonged isolation and deprivation of communication" amounted to a violation of Article 5 of the ECHR. Furthermore, the failure to carry out a proper investigation constituted a violation of Article 4 of the ECHR.
Third, the State displayed a reluctance to disclose Rodríguez’s whereabouts. Despite reports from eyewitnesses who claimed to have seen Rodríguez in Tegucigalpa, the State did not conduct a comprehensive investigation into this matter. These eyewitness testimonies formed a crucial part of the case's factual basis. Yet, the State did not adequately utilize its resources to either confirm or refute these claims, nor did it provide this information to the victims' relatives.
b. Judgment in Velásquez Rodríguez
The Inter-American Commission on Human Rights (IACHR) ultimately issued an order to the Honduran government, mandating compensation to be provided to Rodríguez’s next of kin, specifically his wife and children. This compensation was determined on the grounds of compensating for both lost earnings and moral damages.
In assessing the compensation for lost earnings, the IACHR calculated Rodríguez’s salary at the age of 35 and projected it forward to the retirement age of 60, factoring in retirement benefits. The resulting total compensation amount awarded was 2,422,420 lempiras.
Additionally, an extra amount of two hundred and fifty thousand lempiras was awarded due to the psychological distress and anguish inflicted on Rodríguez’s family as a direct consequence of his disappearance. This case exemplifies how the legal system recognizes the persistent impact of enforced disappearance, particularly considering that Rodríguez was likely the primary breadwinner for his family. His loss of earnings represented a significant blow to their financial stability, highlighting the ongoing consequences of enforced disappearance. Furthermore, the moral compensation awarded underscores the legal acknowledgment of the profound psychological impact experienced by the family upon losing a loved one in such circumstances.
5. What are the present obstacles to the eradication of enforced disappearance?
In my opinion, the biggest obstacle to ending enforced disappearances is impunity: the State’s refusal to hold offenders accountable. There is impunity because the perpetrator of the crime (often the executive branch of the State) is also the very party overseeing punishment for crimes. Theoretically, the State’s executive branch is independent from its judicial branch, meaning that the latter should be able to mete out justice independently. In reality, however, there is often little separation of powers in States which engage in enforced disappearance. This explains a state’s refusal to hold its own agents accountable.
a. Impunity among countries which have not ratified the UN Convention
For evidence of impunity, we need only look at the low ratification rates of the UN Convention. Currently, only 72 of the 193 UN Member States have ratified the Convention. This means that 125 (i.e. more than half of) UN Member States do not recognise the removal of an individual as the crime of enforced disappearance. Instead, this is labelled as the crime of “kidnapping” or “torture”, and the State’s involvement is roundly disavowed.
b. Impunity even among countries which have ratified the UN Convention
Even among States which have ratified the UN Convention, impunity remains widespread. For instance, Sri Lanka and Cuba have outwardly accepted that enforced disappearance is a crime by ratifying the UN Convention. Yet, they are not deeply committed to the spirit and aims of this treaty.
Sri Lanka became a signatory to the UN Convention in 2015 and ratified the treaty the following year. Yet over 100,000 Tamil people remain missing. This is surprising, given that Sri Lanka has also established the Office of Missing Persons, which aims to identify the location (or at least the remains) of disappeared persons. Sri Lanka’s seeming commitment to justice must be understood in the wider political context. Shortly before Sri Lanka ratified the UN Convention, Sirisena had been elected president. His election represented a sense of new beginning and reconciliation in Sri Lanka, following a devastating civil war. Sirisena established the Office of Missing Persons after being elected; this was likely done to further propagate a sense of new (political) beginnings.
However, it has become apparent that the Office of Missing Persons is not completely honest about the extent of enforced disappearance in Sri Lanka. Among others, the Office of Missing Persons has been reluctant to accept the discovery of mass grave sites that excavators have stumbled across. Additionally, the Office of Missing Persons is suspiciously selective in sharing information about disappearances with the relevant domestic authorities and prosecutors. This hinders victims’ access to justice. Although the inception of the Office of Missing Persons is a step in the correct direction, the operations of the Office of Missing Persons suggest that Sri Lanka is simply feigning acceptance of the UN Convention and its obligations – rather than being truly committed to justice.
c. Can an investigative body produce tangible results for punishing enforced disappearance?
Sri Lanka is not alone in its establishment of the Office on Missing Persons. Argentina, a country with a similar history of dictatorships between 1976 and 1983, has had an equivalent body in existence since 1983, known as the National Commission on the Disappearance of Persons. In stark contrast to Cuba's approach, this Argentine commission has a track record of genuine commitment to its mission of uncovering the truth behind enforced disappearances. Notably, their investigations in 1985 contributed to the life sentencing of Jorge Rafael Videla, a former military dictator who held power from 1976 to 1981. This shows that when an honest and open organisation is looking for justice, it will not be afraid to investigate powerful people, even those in top positions of authority.
Cuba makes investigations into enforced disappearances strictly a matter for its own legal system, despite being a party to the UN Convention. They have also made it clear they do not feel obligated to involve the International Court of Justice (ICJ) in these matters. This is permitted as per Article 42(2) of the Convention: a state can be party to the convention and not be obligated to refer cases to the ICJ. Yet, this allows Cuba to avoid international scrutiny. This approach seems to be driven by Cuba's desire to maintain control over how enforced disappearances are handled within its borders. This is likely due to Cuba's history of using enforced disappearances as a form of terror during the Batista dictatorship, and the fact that victims’ families may still be seeking justice today. To prevent a flood of claims against the State, Cuba appears to be trying to limit the impact of the UN Convention within its own borders.
Enforced disappearance is a complex crime, often involving different institutions and continual angst to victims’ families. What sets enforced disappearance apart from other crimes is the level of official involvement, which is also its most terrifying aspect. The largest obstacle to ending enforced disappearances is impunity, particularly when governments are reluctant to acknowledge their own crimes. While it is possible to take concrete action against enforced disappearance, the most vital part of tackling impunity is the need for honesty within the State and the government’s willingness to accept their own crimes.
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