Condensed: Enforced disappearance is (a) the arrest, detention, abduction or any other form of deprivation of liberty (b) by agents of the State (or political organization) or by persons or groups of persons acting with the authorization, support or acquiescence of the State (or political organization), (c) 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. The state has a duty to investigate alleged enforced disappearances for as long as there is uncertainty about the fate of the person who has disappeared. Comprehensive: An enforced disappearance is according to the International Convention for the Protection of All Persons from Enforced Disappearance:[1] 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. The definition of enforced disappearance in the Rome Statute on the International Criminal Court includes not only states but also political organizations as possible perpetrators of enforced disappearance.[2] The UN Working Group on Enforced or Involuntary Disappearances has held that any definition of enforced disappearance in national law should include at least three cumulative elements: (a) deprivation of liberty against the will of the person concerned; (b) involvement of government officials, at least indirectly by acquiescence; (c) refusal to disclose the fate and whereabouts of the person concerned. According to a UN study ‘[e]very instance of secret detention also amounts to a case of enforced disappearance.’[3] The initial deprivation of liberty need not be arbitrary, it is sufficient that there is a refusal to acknowledge that the person is detained.[4] In Velasquez Rodriguez v Honduras, the IACtHR found that: [5] During the period 1981 to 1984, 100 to 150 persons disappeared in the Republic of Honduras, and many were never heard from again … Those disappearances followed a similar pattern, beginning with the kidnapping of the victims by force, often in broad daylight and in public places, by armed men in civilian clothes and disguises, who acted with apparent impunity and who used vehicles without any official identification, with tinted windows and with false license plates or no plates … It was public and notorious knowledge in Honduras that the kidnappings were carried out by military personnel or the police, or persons acting under their orders … The disappearances were carried out in a systematic manner … When queried by relatives, lawyers and persons or entities interested in the protection of human rights, or by judges charged with executing writs of habeas corpus, the authorities systematically denied any knowledge of the detentions or the whereabouts or fate of the victims. A history of *death threats* against an individual who later disappears may be an indication of an enforced disappearance.[6] The state has a duty to investigate alleged enforced disappearances for ‘as long as there is uncertainty about the fate of the person who has disappeared.’[7] General Comment 6 of the Human Rights Committee requires states to ‘establish effective facilities and procedures to investigate thoroughly by an appropriate and impartial body, cases of missing and disappeared persons …’.[8] (See *Failure to investigate*).
[1] International Convention for the Protection of All Persons from Enforced Disappearance (CED) art 2. See also Inter-American Convention on Forced Disappearance of Persons art II.
[2] Rome Statute of the International Criminal Court art 7(2)(i).
[3] Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Working Group on arbitrary detention & the Working Group on enforced or involuntary disappearances, Joint study on global practices in relation to secret detention in the context of countering terrorism, A/HRC/13/42, para 28.
[4] UN Working Group on Enforced or Involuntary Disappearances, Annual Report 2007, A/HRC/7/2.
[5]Velasquez Rodriguez v Honduras (IACtHR 1988) para 147.
[6]Mojica v Dominican Republic, communication 449/1991 (HRC 1994) paras 5.3, 5.7; Tanış and others v Turkey application 65899/01 (ECtHR 2005) para 189.
Enforced disappearance is (a) the arrest, detention, abduction or any other form of deprivation of liberty (b) by agents of the State (or political organization) or by persons or groups of persons acting with the authorization, support or acquiescence of the State (or political organization), (c) 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.
The state has a duty to investigate alleged enforced disappearances for as long as there is uncertainty about the fate of the person who has disappeared.
Comprehensive:
An enforced disappearance is according to the International Convention for the Protection of All Persons from Enforced Disappearance: [1]
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.
The definition of enforced disappearance in the Rome Statute on the International Criminal Court includes not only states but also political organizations as possible perpetrators of enforced disappearance.[2]
The UN Working Group on Enforced or Involuntary Disappearances has held that any definition of enforced disappearance in national law should include at least three cumulative elements:
(a) deprivation of liberty against the will of the person concerned;
(b) involvement of government officials, at least indirectly by acquiescence;
(c) refusal to disclose the fate and whereabouts of the person concerned.
According to a UN study ‘[e]very instance of secret detention also amounts to a case of enforced disappearance.’[3] The initial deprivation of liberty need not be arbitrary, it is sufficient that there is a refusal to acknowledge that the person is detained.[4]
In Velasquez Rodriguez v Honduras, the IACtHR found that: [5]
During the period 1981 to 1984, 100 to 150 persons disappeared in the Republic of Honduras, and many were never heard from again … Those disappearances followed a similar pattern, beginning with the kidnapping of the victims by force, often in broad daylight and in public places, by armed men in civilian clothes and disguises, who acted with apparent impunity and who used vehicles without any official identification, with tinted windows and with false license plates or no plates … It was public and notorious knowledge in Honduras that the kidnappings were carried out by military personnel or the police, or persons acting under their orders … The disappearances were carried out in a systematic manner … When queried by relatives, lawyers and persons or entities interested in the protection of human rights, or by judges charged with executing writs of habeas corpus, the authorities systematically denied any knowledge of the detentions or the whereabouts or fate of the victims.
A history of *death threats* against an individual who later disappears may be an indication of an enforced disappearance.[6]
The state has a duty to investigate alleged enforced disappearances for ‘as long as there is uncertainty about the fate of the person who has disappeared.’[7] General Comment 6 of the Human Rights Committee requires states to ‘establish effective facilities and procedures to investigate thoroughly by an appropriate and impartial body, cases of missing and disappeared persons …’.[8] (See *Failure to investigate*).
[1] International Convention for the Protection of All Persons from Enforced Disappearance (CED) art 2. See also Inter-American Convention on Forced Disappearance of Persons art II.
[2] Rome Statute of the International Criminal Court art 7(2)(i).
[3] Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Working Group on arbitrary detention & the Working Group on enforced or involuntary disappearances, Joint study on global practices in relation to secret detention in the context of countering terrorism, A/HRC/13/42, para 28.
[4] UN Working Group on Enforced or Involuntary Disappearances, Annual Report 2007, A/HRC/7/2.
[5] Velasquez Rodriguez v Honduras (IACtHR 1988) para 147.
[6] Mojica v Dominican Republic, communication 449/1991 (HRC 1994) paras 5.3, 5.7; Tanış and others v Turkey application 65899/01 (ECtHR 2005) para 189.
[7] Velasquez Rodriguez para 181.
[8] Para 4. See also Mojica v Dominican Republic para 5.5.