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FACULTY OF LAWLund University

Sebnem Erener

Competing Standards on the Definition of Enforced Disappearance

A victims-oriented perspective for national implementation

JAMM04 Master Thesis

International Human Rights Law30 higher education credits

Supervisor: Assistant Professor Christoffer Wong

Term: Spring, 2015

Table of ContentsAcknowledgementsPrefaceAbbreviations

1. Introduction....................................................................................................................... 1A. Research Problem and Questions..........................................................................................1B. Summary and the Structure of the Thesis...........................................................................2C. Methodology and Sources....................................................................................................... 6D. Limitations.................................................................................................................................. 6E. Current State of Research.......................................................................................................7

2. General Background........................................................................................................ 9A. Historical background and the current status of ‘enforced disappearances’..............9

1. Introduction...............................................................................................................................................92. World War II and the “Night and Fog Decree”..........................................................................93. Latin America........................................................................................................................................104. Europe......................................................................................................................................................115. Asia............................................................................................................................................................136. Middle East.............................................................................................................................................147. Conclusion - Contemporary forms.................................................................................................15

B. Legal development of the prohibition of enforced disappearance...............................161. Introduction............................................................................................................................................162. International tribunals........................................................................................................................19

(a) Nuremberg Trials........................................................................................................................................19(b) International Criminal Tribunal of Yugoslavia..............................................................................20

3. International Human Rights Bodies...............................................................................................22(a) Human Rights Committee........................................................................................................................23(b) Inter-American Court of Human Rights............................................................................................25(c) European Court of Human Rights........................................................................................................27

4. Domestic decisions..............................................................................................................................29C. The negotiation, adoption and the structure of the International Convention.........32

1. Negotiation and Adoption..................................................................................................................322. Structure of the Convention..............................................................................................................333. Enforcement Mechanism and Functions......................................................................................35

3. 2007 International Convention for the Protection of All Persons from Enforced Disappearance........................................................................................................................ 39

A. Definition of Enforced Disappearance under the Convention.....................................391. Formulation............................................................................................................................................392. Elements of Enforced Disappearance...........................................................................................403. Comparison of the Definition in the Convention with Definitions in the Inter-American Convention and the Rome Statute............................................................................................................42

B. ‘Placing the person outside the protection of the law’....................................................451. The meaning: Recognition as a person (right to juridical personality) /recourse to remedies (right to judicial protection)?.................................................................................................45

(a) Recourse to legal remedies and procedural guarantees...............................................................45(b) Right to recognition as a person in the context of enforced disappearance.........................48

2. Is it an additional element of “special intention” or an objective consequence?..........52(a) Prior to the Convention..............................................................................................................................52(b) Travaux Preparatoire.................................................................................................................................54(c) After the adoption of the Convention....................................................................................................56

4. Implementation of the definition of enforced disappearance by States.............58A. Obligation to codify enforced disappearance as a separate offence............................58

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B. Implementation by States..................................................................................................... 641. Introduction............................................................................................................................................642. Codification of enforced disappearance......................................................................................64

5. Implications of Implementing the Standard set by the Rome Statute................70A. Victims-oriented Perspective under International Law................................................70

1. Introduction............................................................................................................................................702. UN Basic Principles and Guidelines.............................................................................................703. People’s Convention...........................................................................................................................724. Implications on the Human Rights Protection of the Victims of Enforced Disappearance at the National Proceedings.......................................................................................74

B. Implications under the Principle of Complementarity of the Rome Statute.............761. Introduction............................................................................................................................................762. Legal background to the principle of complementarity..........................................................77

(a) Legal roots of the principle of complementarity...........................................................................79(b) “Unwilling” or “unable” to genuinely carry out an investigation or to prosecute..........80(c) National legislation and the principle of complementarity – a two-fold obligation......81

i) Obligation to amend the substantive law......................................................................................82ii) Obligation to amend the procedural law......................................................................................83

3. Al-Senussi decision on admissibility..............................................................................................84(a) Introduction...................................................................................................................................................84(b) “Due process” assessment by the Pre-trial and Appeals Chambers..........................................85(c) Analysis of the Pre-trial and Appeal Chambers’ assessment...................................................87

i) Role of the ICC in addressing “due process” violations at the national proceedings – Scholar overview of the decision................................................................................................................87ii) Due process rights integral to “criminal justice”......................................................................90iii) General Conclusion on Complementarity...................................................................................92

C. Analysis: Implementing the less adequate definition of enforced disappearance in criminal codes – Indication of “unwillingness” of States.......................................................93

6. Conclusions.................................................................................................................... 98

BibliographyTable of Cases

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Acknowledgements

My deep gratitude goes first to my supervisor Assistant Professor, Doctor Christoffer Wong, who expertly guided me throughout my research and motivated me with his constructive feedback at every stage of my thesis. I see his generosity towards his students as a privilege I was fortunate to have.

My appreciation also extends to Maria Giovanna Bianchi (Secretary of the UN Committee on Enforced Disappearances), who was my former supervisor during my internship at the UN Office of the High Commissioner for Human Rights, Committee on Enforced Disappearances in Geneva. Her genuine kindness and encouragement, kept me engaged with the issue of enforced disappearance and stimulated me to further my academic studies on the issue.

Furthermore, I acknowledge the Swedish Institute, which I had the privilege to hold a scholarship from, for making my masters studies in Lund University, Sweden possible and for offering such an active international network of extremely inspiring people.

Above all, I am indebted to my mother, father and dear brother, who have always given countenance to me in life, and whose value to me only grows at every stage of life.

During the course of this research I was once again humbled by the resilience and endurance showed by the victims of gross human rights violations around the world. I want to dedicate my work to those individuals who find consolation in their relentless search for justice.

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AbbreviationsCAT

CED

1992 Declaration on Enforced Disappearance

ECtHR

IACHR

ICC

ICTR

ICTY

IMT

1994 Inter-American Convention

2007 International Convention

NMT

OAS

Reparation Principles

Impunity Principles

Rome Statute

UN

WCC

WGEID

Committee against Torture

Committee on Enforced Disappearances

1992 Declaration on the Protection of All Persons From Enforced Disappearance

European Court of Human Rights

Inter-American Court of Human Rights

International Criminal Court

International Tribunal for Rwanda

International Tribunal for Yugoslavia

International Military Tribunal

1994 Inter-American Convention on Forced Disappearance of Persons

2007 International Convention for the Protection of All Persons from Enforced Disappearance

Nuremberg Military Tribunal

Organization of American States

Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law

Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity

1998 Rome Statute for the Establishment of an International Criminal Court

United Nations

War Crimes Chamber of Bosnia

United Nations Working Group on Enforced or Involuntary Disappearances

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Deliberate and non-deliberate ignorance, neglect, denial, refusal to acknowledge, impunity, disrespect are components of patterns of injustice and inhumanity.1

Theo Van Boven

1 T. van Boven, ‘Victim-Oriented Perspectives: Rights and Realities’, in T. Bonacker and C. Safferling (eds.), Victims of International Crimes: An Interdisciplinary Discourse (The Hague: T.M.C. Asser Press, 2003) 17-27, at 27.

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Sebnem Erener Master’s Thesis – Spring, 2015LLM International Human Rights Law

1. IntroductionA. Research Problem and Questions

As a result of forty years of legal efforts, two competing sets of standards are established under international law regarding the definition of enforced disappearance. The International Convention for the Protection of All Persons from Enforced Disappearance (“International Convention”) provides a broad definition of enforced disappearance, creates the right not to be subjected to enforced disappearance and requires states to criminalize enforced disappearance as a separate and autonomous crime. The Rome Statute of the International Criminal Court (“Rome Statute”) also provides for a definition of enforced disappearance as a crime against humanity, which is narrower. The nature of these two instruments are different, since the Rome Statute is drafted for the purpose of establishing individual responsibility while the International Convention creates human rights obligations for States parties. Yet, under both instruments States parties have the obligation to amend their national law and criminalize enforced disappearance in their criminal codes to ensure effective investigation of enforced disappearance cases and prosecution of perpetrators. The common objective of fighting against impunity for this hideous crime requires national legal systems to be adequate, without compromising victims’ right to justice. Therefore, a victims-oriented perspective has to be applied when States, which have ratified both the International Convention and the Rome Statute, try to balance their obligations under international human rights law and international criminal law.

States parties first started criminalizing enforced disappearance as a crime against humanity upon ratification of the Rome Statute. Although it is important to categorize enforced disappearance as a crime against humanity, too, and not to prosecute rather the separate acts constituting enforced disappearance as ordinary crimes at the national level, not every incident of enforced disappearance is part of a widespread or a systematic attack. Thus, using the definition in the Rome Statute instead of the more recent, broader, inclusive and protective definition under the International Convention is not adequate to prevent and punish separate acts of enforced disappearance. Not only the contextual element of the attack to be part of a widespread or a systematic attack, but also an additional element of special intention of “placing the person outside the protection of the law” is required for an act to be considered an enforced disappearance according to the definition in the Rome Statute. Regarding the “special intention” element, there is lack of clarity of the last part of the definition in the International Convention due to the “constructive ambiguity” that was preferred during the negotiations for a draft convention. Even though, there is consensus today that the last part is an objective consequence of all other constitutive elements, rather than an additional element of special intention, national legislations do not reflect this development reached under international law. Enforced disappearance is a complex and distinct crime, with specific elements. Any ambiguity of the definition in the criminal code of a state will create procedural burden to the victims when it comes to proving their allegations. Thus, the legal shortcomings in the national criminal codes regarding the definition of enforced disappearance is a violation of the principles of due process, and is against the right to justice, truth and reparation of victims, which are principles embodied in the International Convention and the Rome Statute both.

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According to the recent interpretation of the International Criminal Court’s (“ICC”) admissibility assessment, due process violations at the national proceedings can lead cases to be declared admissible pursuant to article 17 of the Rome Statute. In the Al-Senussi decision on admissibility, the ICC Pre-trial and Appeals Chambers considered concepts of due process to be relevant in establishing unwillingness and inability of a state to investigate and to prosecute. Although, ICC does not have a role as a human rights court, due process standards must be complied with at the national level for States to be immune from ICC’s jurisdiction. If there are due process violations that are to a level that will enable the suspect to evade justice and which is contrary to the intention to bring the person to justice, then the notions of impartiality and independence, which are also relevant in the area of human rights law, will be taken into consideration by the Court. Furthermore, depending on the circumstances and specific facts of a case, violations of due process rights can be so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice. In connection to enforced disappearances, this means that the procedural obstacles the narrow definition under the Rome Statute creates during the national proceedings make it necessary for States parties to adopt instead the broader and more protective definition in the International Convention of enforced disappearance, if they do not want to be imposed to ICC’s jurisdiction. Apart from obvious breach of their treaty obligations, the thesis will explore whether or not the type of legal shortcoming created by national legislations through implementing the standard set by the Rome Statute may have an impact on the admissibility of cases of enforced disappearance at the International Criminal Court.

In the thesis, the definition of enforced disappearance will be analyzed to reach the current consensus on whether the last part of the definition of ‘enforced disappearance’ (“to place the person outside the protection of the law”) under article 2 of the International Convention is an additional element to the crime or an objective consequence. Secondly, the implications of considering it as a fourth element to the crime will be explored. If the legal definition of a crime has the implication of creating procedural barriers for the victims there is the risk for this method of implementation to be considered a due process violation of the victims and to be inconsistent to victims-oriented approach. In the final part, these implications will be applied to the consideration made by the Pre-trial and Appeals Chambers on Al-Senussi decision, and a conclusion will be reached on whether, in future cases, to adopt the narrower definition in article 7 of the Statute rather than the broader definition under the Convention can be an indicator of “unwillingness” under article 17 of the Rome Statute.

B. Summary and the Structure of the Thesis

Summary. There are competing standards regarding the definition of the crime of “enforced disappearance” under international law. When criminalizing enforced disappearance at the national level as part of their obligations under international law, States which adopt the narrower definition of enforced disappearance provided in the Rome Statute require victims of enforced disappearance to prove the existence of an additional “special intention” of perpetrators. To create an additional evidential burden to victims by means of adopting a more narrow definition of the crime as opposed to a broader definition also provided under international law leads to a violation of due process rights of the victims by restricting their access to justice. Article 17 of the Rome Statute, regulates indicators of “unwillingness” of a State to investigate and prosecute crimes at the national level and sets out admissibility criteria for ICC prosecutions. It is, firstly, argued that, adopting the exact definition under the Rome Statute in the national

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criminal codes, is a legislative failure in protecting victims of enforced disappearance and an indication of ‘unwillingness’ to effectively investigate and prosecute crimes of enforced disappearance at the national level. It is part of States’ obligation under both international human rights law and international criminal law to adopt a victims-oriented perspective in codifying international crimes in their national codes. It is argued, secondly, that, the definition under the Rome Statute, and the additional elements of the crime thereof, should apply only to the prosecutions at the international level and not at the national level in order to widen the scope of protection for victims of enforced disappearance.

Structure of the Thesis. In Chapter 2, the historical background on enforced disappearances, legal background on the prohibition of enforced disappearance and the background to the adoption of the International Convention on the Enforced Disappearances and the mechanisms under the Convention will be given. “Enforced disappearance” is known to be prevalently used by the German Führer and Supreme Commander of the Armed Forces, Adolf Hitler during the World War II.2 Since then it has been practiced as a tool for political oppression in the Latin American junta regimes, as a method for ethnic cleansing during the Bosnian war, to submerge political movements of minorities in the south-east of Turkey, as a tool to eject Turkish-Cypriots from political positions by the Greek-Cypriots and later during the invasion of Northern Cyprus by Turkey, but also during the conflicts in the Chechen Republic of the Russian Federation, in Belarus, Ukraine, Philippines, Sri Lanka etc. It is neither limited to a period of time in history, nor a specific geographical location. The victims of enforced disappearance are still seeking for justice after decades, and the phenomenon continues to occur in contemporary forms, such as part of the ‘war on terror’. It is a global, continuous, urgent and a serious human rights problem and due to the complexity of the phenomenon it is important to understand both the historical and the legal background of it in order to be able to fight this problem utterly. In the first part of the essay, the historical background of some of the most wide scale examples of enforced disappearances will be summarized. Secondly, the legal origin of the crime of enforced disappearance, from the Nuremberg Trials to the adoption of the 2007 United Nations Convention on Enforced Disappearance will be analyzed and an overview of the legal development of the prohibition of enforced disappearance as a war crime, crime against humanity and a human rights violation will be given.

The definition of enforced disappearance and the legal tools to prevent this crime and to protect the victims under the 2007 Convention on Enforced Disappearance is a result of decades of work by international human rights bodies, victims’ organizations and NGOs. Looking at its content, the Convention is very successful at filling many of the gaps that existed under international law on enforced disappearance prior to its adoption. The Convention also established the Committee on Enforced Disappearance with a monitoring mandate and novel functions. While the document creates a mechanism that has a great potential of eradicating enforced disappearances, after several years of the establishment of the Committee, already the discrepancy pertaining to the national implementation of the “definition” of the crime is hindering the indirect enforcement mechanism of the Convention at the national level.

2 Prior to the World War II, Stalin is known to have used secret arrests in the Soviet government, which could have had inspired Hitler; see, C.K. Hall, Enforced Disappearance of Persons, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (München: Verlag C.H. Beck oHG, 2nd edition, 2008), at 221.). However, crimes were not documented as meticulously as in the Third Reich, thus this information cannot be validated; see, B. Finucane, ‘Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War’, 35 Yale Journal of International Law (2009) 171-197, at 173.

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In Chapter 3 the definition and the elements of the crime of enforced disappearance will be analyzed with focus on the notion of “placing the person outside the protection of the law”. There are four international legal instruments that provide for a definition of ‘enforced disappearance’. Namely, The Inter-American Convention on The Forced Disappearance of Persons, Declaration on the Protection of all Persons from Enforced Disappearance, The International Convention for the Protection of All Persons from Enforced Disappearance and The Rome Statute of the International Criminal Court. Except for the Declaration, all three documents are legally binding documents. For all three remaining instruments, three elements of the offence of enforced disappearance are mutual. However, during the negotiations for the draft Convention, last part of the definition caused controversy among delegations, on whether to ‘place the person outside the protection of the law’ is a fourth element of special intention or an objective consequence of other elements. Although at the scholar level of the discussion, it is beyond question today that intention to put the person outside the protection of the law is a consequence rather than an element, domestic legislation remains inconsistent. Due to the ‘constructive ambiguity’ of the definition in the Convention, in their reports to the Committee on Enforced Disappearances and in their submissions to international courts States continue to argue that they have adopted the narrower definition in the Rome Statute, which defines enforced disappearance as a crime against humanity and requires proof for additional elements. Accepting that the special intention of the perpetrator “to place the person outside the protection of the law” to be an element of the crime, will generate a heavy burden for the victims to prove such intention, mainly because it is almost always impossible for victims to obtain such evidence due to the nature of the crime.3

The meaning of ‘to be placed outside the protection of the law’ is not fully agreed upon either. In the last part of the definition under the Inter-American Convention, an alternative wording is used, which raises the question on the meaning of the phrase under the Convention. Under the Inter-American Convention it says, “thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees”. The choice of using ‘thereby’ leaves no ambiguity that impeding the person’s recourse to legal remedies and procedural guarantees is a consequence rather than an additional element under the Inter-American system unlike the Convention and the Rome Statute. However, this part is still relevant in shedding light on the meaning of the last part of definitions under the International Convention and the Rome Statute. Is “to be placed outside the protection of the law” means not to be recognized as a person, or to be impeded recourse to legal remedies? According to one author, the meaning under the Inter-American system, makes it an element that “concerns the victim’s case and not the perpetrator’s defense”, which was overlooked during the negotiations for the draft Convention on Enforced Disappearances. 4 However, victims can also be placed outside the protection of the law as a consequence of not being recognized as a person, which is a broader consequence of the crime. The meaning under the Convention will be discussed, and a conclusion will be reached on the impact of these interpretations on the victims’ case.

3 T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Leiden: Martinus Nijhoff Publishers, 2007), at 276.4 I. Pervou, ‘The Convention fort he Protection of All Persons from Enforced Disappearance: Moving Human Rights Protection Ahead’, 5 European Journal of Legal Studies (2012) 145-171, at 153.

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During the negotiations States argued that, an element of intention was necessary to bring cases against individuals under domestic penal systems. This argument was contested by the fact that, as a matter of course, a general intention is necessary in every penal system and is implicit in the definition, thus not requiring an additional requirement of special intention. In this part of the essay, these differing opinions on the requirement of an element of ‘intention’ will be discussed, referring to pre-Convention bodies’ views, such as the UNWGEID, HRC, IACHR, ECtHR as well as the views expressed in the travaux preparatoire of the Convention. Since it was argued by some States that their domestic system requires the intention of the perpetrator to place the person outside the protection of the law, the discussion on the general and special intention requirements of national penal systems will be analyzed.

In Chapter 4, the methods of implementation of the definition of enforced disappearance in national criminal codes will be given of States which have ratified both the International Convention and the Rome Statute.

In Chapter 5, the implications of different methods of implementing the definition will be analyzed to examine whether certain methods have implications that are creating legal shortcomings to establish justice to the victims of enforced disappearance contrary to UN Basic Principles and Guidelines on Impunity and Reparations.5 International criminal law expert Cherif Bassiouni wrote, “International law is not victim-oriented”.6 Many human rights violations are ignored not only due to political obstacles and economic factors but also due to legal shortcomings.7 One way of closing the gap between the aspirations of international human rights law and the real-life impact of human rights law on victims is through amending domestic legal and social orders that provide inadequate laws, restrictions in the definition of the scope and nature of violations and other obstacles for the victims. Inadequate laws and restrictive definitions of the violations impede victims’ access to justice and limit the protection that might be provided by the courts.

In the second part of Chapter 5, the implications of adopting the narrower definition under the Rome Statute will be analyzed. Some States have obligations both under the Convention and the Rome Statute, which might, erroneously, seem as a justification to adopt the narrower definition under the Rome Statute at the domestic criminal legislations. On the one hand, international criminal law relies mainly on the ‘indirect enforcement mechanism’, due to institutional and financial limitations of the International Criminal Court. The “principle of complementarity” is thus paramount to fight impunity and to realize the objectives under the Rome Statute. According to the “principle of complementarity”, the ICC will not have jurisdiction over a case if the State concerned amended their substantive and procedural laws to a level that will enable them to prosecute such crimes impartially and independently at the national level, and if consequently does so. However, while it is expected for States to prosecute the crimes under the Rome

5 UN General Assembly, Resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by UN General Assembly Resolution 60/147, 16 December 2005.6 E. Kristjansdottir, ‘International mass claims processes and the ICC Trust Fund for Victims’, in C. Ferstman, M. Goetz, A. Stephens (eds), Reparations for victims of genocide, war crimes and crimes against humanity (Leiden: Martinus Nijhoff Publishers, 2009) 165-195, at 167.7 T. van Boven, ‘Victim-Oriented Perspectives: Rights and Realities’, in T. Bonacker and C. Safferling (eds.), Victims of International Crimes: An Interdisciplinary Discourse (The Hague: T.M.C. Asser Press, 2003) 17-27, at 18.

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Statute effectively at the national level, States do not have the legal obligation to adopt the exact same definitions.8 The obligation to criminalize certain crimes is due to obligations under other international treaties, which openly oblige States to criminalize them such as the International Convention.

C. Methodology and Sources

The overall method of this thesis is dogmatic legal method. The main primary sources in approaching the research problem and questions will be the International Convention for the Protection of All Persons from Enforced Disappearance and the Rome Statute of the International Criminal Court. The main analysis concerning these two instruments will be based on the reports prior to the drafting of both documents, travaux preparatoires of both documents, General Comments by the Committee on Enforced Disappearance and the Working Group on Enforced and Involuntary Disappearances, State parties Reports to the Committee on Enforced Disappearance, Concluding Observations by the Committee on Enforced Disappearance, the decisions by the Pre-trial and Appeals Chambers of the International Criminal Court.

In addition to the main primary sources international and regional human rights treaties, UN Conventions and Declarations, UN GA resolutions, UN Commission of Human Rights and UN Council of Human Rights decisions and reports, UN Human Rights Treaty Bodies General Comments and decisions, jurisprudence of the Inter-American Court of Human Rights, European Court of Human Rights and international criminal tribunals, domestic jurisprudence and national criminal codes will be used as additional primary sources. In giving historical and legal background on the prohibition of enforced disappearance, reports, fact sheets and country reports published by NGOs documenting the extent and nature of enforced disappearance around the world will be relied on.

Secondary sources will be used supplementing the analysis done based on the primary sources. The main secondary sources will be books, articles, commentaries and reports by renowned legal scholars.

D. Limitations

Competing standards exist in relation to various overlapping issues under international human rights and criminal law. States in their attempts to codify any crime that is prohibited as a war crime, crime against humanity and a human rights violation face with the problem of selecting the most appropriate standard. The thesis does not discuss the general fragmentation of international law and the problem of competing standards between international human rights and criminal law. Rather, the focus is solely on the competing standards on the prohibition of enforced disappearance under international law.

Furthermore, standards on enforced disappearance under international human rights law and international criminal law do not only pertain to the definition of the crime, nor the full protection of the victims is dependent solely on the proper definition of the crime of enforced disappearance in the national criminal codes. However, reaching the existing definitions of enforced disappearance are

8 S.M.H. Nouwen, ‘Fine-tuning complementarity’, in B.S. Brown (eds), Research Handbook on International Criminal Law (The Massachusetts: Edward Elgar Publishing Ltd., 2011) 206-231, at 214.

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considered to be a success of international standard setting, for specifying distinct elements of the crime and for creating a more preventive approach towards the crime. Nevertheless, the effectiveness of these standards rely on consistency in ratifying instruments prohibiting enforced disappearance and to take the necessary measure at the national level to protect the victims, prevent the crime and to punish the perpetrators. The thesis, accordingly, will be limited on the States’ obligation to amend their national law and to criminalize enforced disappearance by adopting the most appropriate definition of enforced disappearance. The limited purpose of the thesis is to seek for an appropriate approach in the area of national legislation. Even though, the impact of domestic legislation to the national criminal proceedings and the impact on the victims’ access to justice will be discussed, other factors which have impact on national criminal proceedings will be excluded in order to give a more detailed analysis on the impact of legislation.

There are four instruments under international law providing definitions for the crime of enforced disappearance. The thesis will look into the definitions of enforced disappearance under two instruments, namely the International Convention for the Protection of All Persons from Enforced Disappearance and the Rome Statute of the International Criminal Court. The other two instruments, namely Inter-American Convention on Forced Disappearance of Persons and the Declaration on the Protection of All Persons from Enforced Disappearance will be used for comparative purposes but will be excluded in the analysis. The focus will be on the two definitions of enforced disappearance, which are provided by international and legally binding documents, rather than declaratory and regional documents.

In examining national legislation, only the States that have ratified both the International Convention for the Protection of All Persons from Enforced Disappearance and the Rome Statute of the International Criminal Code, will be analyzed. However, due to limitations in accessing updated and translated versions of domestic criminal laws, not every State which have ratified both these instruments will be included. In the past it took five years for the Working Group on Enforced or Involuntary Disappearances to receive responds to the questionnaires it sent out to States in order to prepare a report on the codification of the crime of enforced disappearance as a separate crime under domestic law.9 Therefore, due to the limited time to conduct the research and language limitations to understand the criminal codes of each state that have ratified both instruments, the analysis will be limited to the information on national criminal legislation of States that are included in the Report by the Working Group on Best Practices. Although, the information is not representative geographically, criminal codes that are selected are representative of all the different methods used by States in codifying enforced disappearance.

E. Current State of Research

Elements of the crime of enforced disappearance have been extensively examined and commented on by legal scholars since the drafting of the International Convention. Although there is consensus today that the definition in the International Convention do not include “placing the person outside the protection of the law” as an additional element of special intention, further implications of having competing standards regarding the definition of the crime under international human rights law and criminal have not been identified. While the

9 Report of the Working Group on Enforced or Involuntary Disappearances, Best practices on enforced disappearances in domestic criminal legislation, A/HRC/16/48/Add.3, 28 December 2010.

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difficulty in overcoming the ambiguity of the definition in the International Convention is rooted in the existence of a previous definition set by the Rome Statute, obligations rising out of two standards are not conciliated taking into consideration the common objectives of both instruments regarding the prevention of enforced disappearance and protection of the victims of enforced disappearance through effective national criminal proceedings.

The current research on enforced disappearance focuses on international jurisprudence and the emphasis is given on international human rights mechanisms in fighting the crime. However, when looked at national legislative practices more closely, non-compliance of human rights obligations by States is due to the conflicting norms under the International Convention and the Rome Statute. The current ambiguity regarding the definition of enforced disappearance hampers the possibility of adequate national implementation and thus limits the indirect enforcement mechanism of both the international human rights and international criminal law, effects of which are not identified under the current state of research.

Finally, there is a rising awareness on the need to humanize international law and to adopt a victims-oriented approach in fighting gross violations of human rights and serious crimes. As a result of this realization, the international community has reached a common understanding on the need to adopt a victims-oriented perspective to international law and decided on a set of rights that have to be prioritized in furthering the protection for the victims. The aim of these principles is to provide guidance for international and national standards-setting, jurisprudence and practice. Currently, the level of implementation of these recent standards requires further examination, which is another objective of this thesis.

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2. General BackgroundA. Historical background and the current status of

‘enforced disappearances’

1. Introduction

There are reports of incidents around the world where individuals go missing, either voluntarily or involuntarily, due to natural disasters, armed conflicts, internal disturbances, riots, criminal abductions, during attempts to escape justice or other reasons.10 ‘Enforced disappearance’, however, is an offence of its own under international law, which has a distinct but narrower definition. It is important to know the historical background of the emergence and re-occurrence of this phenomenon in the last century, firstly, in order to understand the complex nature of it and varied forms of its contextual practice. Secondly, historical background of the offence will demonstrate quite clearly that enforced disappearances are not limited to a certain period of time in history, nor limited to certain geography. Enforced disappearances continue to prevail in Africa, Asia, Europe, Latin America (Central and South), Middle East and so on and is a ‘universal phenomenon’11 that, regretfully, has not yet eradicated.

2. World War II and the “Night and Fog Decree”

According to some authors, enforced disappearance was first used officially by the German Führer and Supreme Commander of the Armed Forces, Adolf Hitler.12 On 7 December 1941, Adolf Hitler ordered the secret ‘Night and Fog’ decree, to replace the unsuccessful Nazi policy aiming to prevent underground activities in the occupied territories.13 According to the decree, penal servitude or even a hard labor sentence for life would be too weak punishments for offences “endangering German security”. The punishment for prisoners accused for “offences committed against the German State” was the death penalty. However, according to the decree, the offenders were to be taken to Germany and were made to vanish in the German territories, unless the trial and the execution of death penalty can be completed in eight days. As evidenced in the official records of correspondences, it was believed that, if the executions were not immediate, the deterrent effect and the intensity of intimidation caused by the arrests would diminish. The aim was to deter the population from standing against the will of the German state; firstly, through making prisoners vanish without a trace, and secondly, through not

10 UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002, § 6.11 UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002, § 10.12 Prior to the World War II, Stalin is known to have used secret arrests in the Soviet government, which could have had inspired Hitler; see, C.K. Hall, Enforced Disappearance of Persons, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (München: Verlag C.H. Beck oHG, 2nd edition, 2008) 221-226, at 221. However, crimes were not documented as meticulously as in the Third Reich, thus this information cannot be validated; see, B. Finucane, ‘Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War’, 35 Yale Journal of International Law (2009) 171-197, at 173.13 B. Finucane, ‘Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War’, 35 Yale Journal of International Law (2009) 171-197, at 176.

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providing information to the families regarding their whereabouts or fate.14 According to the field Marshal Wilhelm Keitel who was responsible from implementing the Night and Fog Decree, efficient and enduring intimidation was needed and that could only be achieved “either by capital punishment or by measures by which the relatives of the prisoner and the population do not know the fate of the criminal”.15 Victims of the Decree were arrested in the middle of the night under the cover of the fog, and taken to prisons to be interrogated and to be tortured. If they survived, they would eventually arrive at the concentration camps.16 As a result of the Decree, around 6000 people were secretly detained and sent to concentration camps, whose fate and whereabouts were never revealed.17

3. Latin America

Following the World War II, enforced disappearances reoccurred and were used systematically in Latin America. Starting in Guatemala between 1963-1966, it was followed by El Salvador, Chile, Uruguay, Argentina, Brazil, Colombia, Peru, Honduras, Bolivia, Haiti and Mexico in seventies and eighties. The armed agents of the State intelligence or paramilitary groups practiced enforced disappearances in these countries, as part of the internal conflicts, guerilla wars or struggle against the dictatorships or junta regimes.18 Enforced disappearances were used as a means to eliminate political opponents and to terrorize the population under complete impunity of perpetrators and violation of the existing domestic law. Under the “national security doctrine”, peasants, students, teachers, clergymen, political leaders were among the targets and were labeled as “terrorists, internal enemies or political opponents”.19 The objective was to destroy organizations through eliminating individual members and intimidating the population who carried the potential of supporting those organizations. In Guatemala the internal armed conflict between guerillas, leftists and students against the armed forces continued for 36 years, until the signing of 1996 Peace Accords. Rural peasants and indigenous communities who were torn between these groups suffered the most, and over 200,000 people lost their lives due to massacres and forced disappearances. Guatemala still faces the challenge of bringing those responsible for these atrocities to justice. Generals, such as Efraín Ríos Montt who was the de facto head of the state in 1982 and 1983, and who continues his political influence through his party, enjoyed immunities up until 2012.20 In Argentina Jorge Videla 14 Memorandum from the High Command of the Armed Forces to Office Foreign Countries, Counter Intel./Dep’t Abwehr (Feb. 2, 1942), translated in 7 Office of United States Chief of Counsel for the Prosecution of Axis Criminality, Nazi Conspiracy and Aggression 871, 872 (1946).15 Memorandum from the High Command of the Armed Forces on Prosecution of Offences Committed within the Occupied Countries Against the German State or the Occupying Powers. (Dec. 12 , 1941), translated in 7 Office of United States Chief of Counsel for he Prosecution of Axis Criminality, Nazi Conspiracy and Aggression 873, 873 (1946).16 E. Kogon, The Theory and Practice of Hell: The German Concentration Camps and the System behind Them (New York: Farrar, Straus, Giroux, 2006), 193-216, at 202.17 To check the approximate number of the disappeared, see the website:http://global.britannica.com/EBchecked/topic/414948/Night-and-Fog-Decree18 T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention, (Leiden: Martinus Nijhoff Publishers, 2007), at 2; see also, Council of Europe, Parlamentary Assembly, Enforced Disappearances, Report to the Committee on Legal Affairs and Human Rights, Rapporteur Mr. Christos Pourgourides, Doc. 10679, 19 September 2005, § 12.19 T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention, (Leiden: Martinus Nijhoff Publishers, 2007), at 7,10.20 See:http://ihrlaw.org/2012/01/23/in-guatemala-long-awaited-step-towards-accountability-as-former-dictator-faces-genocide-charges/ and also, http://www.ijrcenter.org/cases-before-national-courts/alien-tort-claims-act-litigation-u-s/.

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seized power of the country on 1976 and ruled until 1983. The dictatorship targeted unionists, students and anyone opposing to “western, Christian” values and declared them suspected terrorists. According to official records 10,000, but according to human rights organizations 30,000 people disappeared during the dictatorship, starting with the Night of the Pencils incident, during which young students were kidnapped, disappeared, tortured, raped and murdered.21 Upon the establishment of a democratic government in Argentina in 1983, a truth commission was established but due to amnesty laws court proceedings could not be taken against the members of the dictatorship era. Finally on 2003, the Supreme Court of Argentina declared amnesty laws unconstitutional in the Simon case22, which opened up the way to further large-scale prosecutions regarding the Dirty War era.23 Just last year forty-three students disappeared involuntarily in Mexico, where disappearances occur on a widespread manner.24 Despite the high number of disappearances in Mexico, on February 2015, during the Constructive Dialogue at the 7th session of the Committee on Enforced Disappearance in Geneva, Mexican delegation was not able to give accurate figures of the incidents of disappearance in Mexico,25 which urged the Committee to express its serious concerns and to ask the government to provide proof on the fate or the whereabouts of the disappeared to the families of the victims immediately.26

4. Europe

After around three decades from the prosecutions at the International Military Tribunals held in Nuremberg and the hanging of Wilhelm Keitel as a result of these trials, enforced disappearances reoccurred in Europe. In 1963, the partnership of Republic of Cyprus was destroyed upon the Greek Cypriot partner’s onslaught on the Turkish Cypriot partner, through the ejection of all Turkish Cypriots’ positions at state organs.27 Mostly Turkish Cypriots but some Greek Cypriots disappeared during the troubles between two communities in 1963-1964. Later, during the Turkish invasion of Northern Cyprus in 1974, Greek Cypriots and some Turkish Cypriots went missing.28 According to the statement of Mr. Rauf Denktaş (President of the ‘Turkish Republic of Northern Cyprus’),29 which was broadcasted 21 For a summarized historical account of enforced disappearances during the Dirty War, see: https://madresdemayo.wordpress.com/the-dirty-war/.22 Simon, Julio Héctor et al., Supreme Court of Argentina, Case No. 17.768, 14 June 2005.23 See for example, Campo de Mayo Trials (1), Federal Chamber of Criminal Appeals Argentina, Case Nos. 2023, 2031, 2034 and 2043, 7 December 2012; Campo de Mayo Trials (2), Federal Chamber of Criminal Appeals Argentina, Case Nos. 2046 and 2208, 7 December 2012; Campo de Mayo Trials (3), Federal Criminal Oral Tribunal No.1 of San Martín, Case No. 2047, 12 March 2013; Hospital Posadas Case, Federal Chamber of Criminal Appeals Argentina, Case No. 1696/1742, 28 November 2012; Plan Sistematico Case, Federal Criminal Oral Tribunal No. 6 of Buenos Aires, Argentina, Case No. 1351, 17 September 2012.24 CED, Committee on Enforced Disappearances, Concluding observations on the report submitted by Mexico under article 19, paragraph 1, of the Convention, CED/C/MEX/CO/1, 17 April 2014, § 11-12.25 http://www.latinorebels.com/2015/02/14/un-grills-mexico-over-handling-of-43-missing-students/.26 CED, Committee on Enforced Disappearances, Concluding observations on the report submitted by Mexico under article 19, paragraph 1, of the Convention, CED/C/MEX/CO/1, 17 April 2014, § 31.27 To read the public letter written by Ozdil Nami, Minister of Foreign Affairs of the Turkish Republic of Northern Cyprus, which was produced in conjunction with the Washington Times Advocacy Department, see the website; http://www.washingtontimes.com/news/2014/sep/30/turkish-republic-northern-cyprus-ministry-foreign-/#ixzz3QloOFs20 .28ECtHR, Case of Cyprus v. Turkey, Application No. 25781/94, 10 May 2001, § 25.29 The existence of TRNC is controversial. International community does not recognize the autonomy of the TRNC but the government of TRNC is exercising its sovereignty since 1974 on the Northern territory of Cyprus. On February 11, 2014 Turkish and Greek Cypriot sides reached a solution for the

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on 1996, forty-two Greek Cypriot prisoners were handed over to Turkish-Cypriot fighters who killed them and that in order to prevent further such killings prisoners were subsequently transferred to Turkey.30 Consequently, many prisoners went missing and their whereabouts or fate have not been revealed for over 20 years since they were taken into custody by Turkish soldiers or Turkish-Cypriot paramilitaries according to witness statements.31

In Turkey, disappearances were practiced systematically against Kurdish secessionists in the Southeast region of the country during 1980s and 1990s. Similar to the Argentinian human rights organization ‘The Grandmothers of the Plaza de Mayo’, mothers of the disappeared in the Kurdish region of Turkey established an organization named ‘Saturday Mothers’,32 who up until today continue to hold sit-in protests in Istanbul every Saturday, seeking for truth and demanding justice for their relatives in the last 10 years. On 25 October 2014, they organized the sit-in protest for the 500th time. 33 Due to the unresponsiveness of Turkey’s past and present governments’ on the issue, many of the victims approached to the ECtHR. Yet, Turkey has built a ‘wall of silence’ and proved to be a ‘subversive objector’, which even led the ECtHR to change its approach in its decisions with the aim of providing justice to victims.34 Due to the lack of incentive by the Turkish government and the political conflict in the region, fate and whereabouts of many disappeared remain unclarified.

During the war in Bosnia, which started after its declaration of independence on 1992, 100.000 people were killed, more than two million people were displaced and approximately 30.000 people went missing until the end of the war in 1995.35 These disappearances occurred in the context of conflict and among thousands of disappearances, there were some cases, which were committed by non-State actors of which UNWGEID did not have the mandate to handle.36 The Commission on Human Rights established a special process to resolve those cases on humanitarian

first time since the referenda on the Annan Plan. “With their joint statement, the two leaders agreed that their goal is to achieve a bizonal, bicommunal federation with political equality and that this federation will have a single sovereignty as defined and enjoyed by all UN member states under the UN Charter and which emanates equally from Turkish Cypriots and Greek Cypriots. The federation will be composed of two constituent states of equal status, and neither side will claim authority or jurisdiction over the other”; see also, the public letter written by Ozdil Nami, Minister of Foreign Affairs of the Turkish Republic of Northern Cyprus, which was produced in conjunction with the Washington Times Advocacy Department:http://www.washingtontimes.com/news/2014/sep/30/turkish-republic-northern-cyprus-ministry-foreign-/?page=all).30 ECtHR, Case of Cyprus v. Turkey, Application No. 25781/94, 10 May 2001, § 25.31 ECtHR, Case of Cyprus v. Turkey, Application No. 25781/94, 10 May 2001, § 26.32 Read more on Saturday Mothers on the website of the organisation Hafiza Merkezi (Memory Center) and World Policy Institute on: http://www.memorializeturkey.com/en/memorial/saturday-mothers/.33 To check the media coverage of the 500th protest check:http://www.todayszaman.com/national_500th-meeting-of-saturday-mothers-draws-large-crowd_362691.html.34 H. Keller and C. Heri, ‘Enforced Disappearance and the European Court of Human Rights’, 12 Journal of International Criminal Justice (2014) 735-750. 35 See the press release of the United Nations Working Group on Enforced or Involuntary Disappearances of 21 June 2010 on its visit to Bosnia and Herzegovina: “[...] between 28,000 – 30,000 persons disappeared in BiH during the conflict.”; see also, the Commision on Human Rights, Report prepared by Manfred Nowak, “Question of Disappearances, Special Process on Missing Persons in the Territory of the Former Yugoslavia”, U.N. Doc. E/CN.4/1996/36, 4 March 1996, § 1.36 UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002, § 40.

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basis. However, this process and the Human Rights Chamber established after the Dayton Peace Agreement were not successful in clarifying the fate and whereabouts of the persons who went missing.37 On 1996, International Commission on Missing Persons (“the ICMP”) was established to locate and to identify the missing people and consequently managed to identify over 13,000 missing persons.38 Additionally, 7,000 others were identified by traditional search methods. Still, cases of over ten thousand individuals are yet to be clarified in Bosnia and Herzegovina.39

Much more recently, between 2004 and 2005, the Chechen Republic of the Russian Federation was affected by enforced disappearances, in which hundreds of people were arrested by armed and masked groups as part of a security operation. According to the figures by the Russian human rights center Memorial’s figures, 467 inhabitants were abducted between 2004 and the first three months of 2005, and many other victims remained too scared even to lodge a complaint.40 Again within Council of Europe countries, Belarus, Ukraine, Azerbaijan are among the countries in which many individuals went missing in the 21st century and impunity prevailed for the perpetrators.

In Crimea last year, activists and journalists were unlawfully detained, abducted and some of them eventually disappeared, with authorities denying them having been taken to custody at all. Members of self-defence units and paramilitary forces are believed to have committed these abductions, outside of the law and with impunity, while it is alleged that the local government is allowing these forces to operate and does not disarm them.41 These units are believed to have started operating at the end of February 2014 and abductions have been reported through the year from May to September.42

5. Asia

Asia is not an exception to places where enforced disappearance is being practiced. According to a Human Rights Watch report published on 2009,43 and previously on 2005, there are detention places named as “black jails” in China, created and used by local officials to detain innocent citizens who seek redress at the capital Beijing for abuses they face in their local governments. This process of seeking redress in Beijing or provincial capitals is a system called “petitioning”. Majority of detainees are petitioners, who get abducted by members of security forces in plain clothes, who are employed by local and provincial officials. These officials pay daily

37 UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002, § 40.38 ECtHR, Case of Palic v. Bosnia and Herzegovina, Application No. 4704/04, 15 September 2011, § 8.39 B. Finucane, ‘Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War’, 35 Yale Journal of International Law (2009) 171-197, 188.40 Committee on Legal Affairs and Human Rights. Report. Doc. 10679. Council of Europe, Parliamentary Assembly, § 16.41 Human Rights Watch, News Release ‘Crimea: Attacks, ‘Disappearances’ by Illegal Forces: Rein in Units Operating Outside Law’, available at: http://www.hrw.org/news/2014/03/14/crimea-attacks-disappearances-illegal-forces.42 Human Rights Watch, News Release ‘Crimea: Enforced Disappearances Crimean Tatars, Other Pro-Ukraine Figures Among the Missing’, October 7 2014, available at: http://www.hrw.org/news/2014/10/07/crimea-enforced-disappearances . 43 Human Rights Watch, Report ‘An Alleyway in Hell” China’s Abusive “Black Jails”, ISBN:1-56432-559-8, November 2009, available at:http://www.hrw.org/sites/default/files/reports/china1109webwcover_1.pdf.

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amounts to places where they use as black jails. Abducted petitioners, who local authorities do not want to complain in the capital, are kept incommunicado in these places, under constant surveillance, submitted to physical and psychological abuse, threats and intimidation and are denied access to legal counsel, family members and friends.44 While some detainees are eventually released, or have limited access to communicate relatives, there are many situations in which unlawful abductions and detentions committed by agents of the state result in enforced disappearances. Although, China has issued its first National Human Rights Action Plan for 2009 and 2010, black jails continue to operate and impunity persists.45

Allegedly, Sri Lanka has “more outstanding cases of disappeared people than anywhere else in the world, apart from Iraq”.46 According to a 2010 Human Rights Watch Report,47 11,000 people were detained in “rehabilitation centres” after the end of the conflict between the Sri Lankan Government and LTTE for 26 years. Many persons who the government believed to be associated with the LTTE, are detained in rehabilitation centres. The vast majority of these detainees are not officially charged with committing crimes, but they are kept in these centres with suspicion to be involved in serious incidents, while being mistreated, denied habeas corpus remedies, access to legal counsel and family members, and in many cases family members are not informed about the whereabouts of the detainees. Most of the detainees and their families remain under the fear of being “disappeared”, as it is likely, looking at Sri Lankas enforced disappearance record.48

6. Middle East

According to unofficial resources, Iraq has the highest number of disappeared in the whole world.49 Numbers are estimated by NGOs, human rights organizations, research centres to be around half a million people, even though the government records and the US official records claim to be less.50 Disappearances started to occur in Iraq with the war with Iran on 1980s, the Gulf war on 1991 and the 2003

44 Human Rights Watch, Report ‘An Alleyway in Hell” China’s Abusive “Black Jails”, ISBN:1-56432-559-8, November 2009, available at:http://www.hrw.org/sites/default/files/reports/china1109webwcover_1.pdf. See also the previous report on the same issue, Human Rights Watch, “We Could Disappear at Any Time: Retaliation and Abuses against Chinese Petitioners, ”vol.17, no.11, December 2005, available at: http://www.hrw.org/reports/2005/china1205/ (accessed August 28, 2009).45 “China: UN expert body concerned about recent wave of enforced disappearances” , UN press release, April 8, 2011, available at:http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10928&LangID=E#sthash.QwzU6F4D.dpuf (accessed February 25, 2015).46 For recent press release on the disappeared in Sri Lanka , available at: http://www.telegraph.co.uk/news/worldnews/asia/srilanka/10387036/Scandal-of-Sri-Lankas-disappeared.html.47 Human Rights Watch Report, ‘Legal Limbo The Uncertain Fate of Detained LTTE Suspects in Sri Lanka’, February 2010, ISBN: 1-56432-592-X, available at:http://www.hrw.org/sites/default/files/reports/srilanka0210webwcover.pdf.48 Human Rights Watch Report, ‘Legal Limbo The Uncertain Fate of Detained LTTE Suspects in Sri Lanka’, February 2010, ISBN: 1-56432-592-X, available at: http://www.hrw.org/sites/default/files/reports/srilanka0210webwcover.pdf.49 For press release on the issue, see: http://www.telegraph.co.uk/news/worldnews/asia/srilanka/10387036/Scandal-of-Sri-Lankas-disappeared.html.50 D. Adriaensens, ‘Enforced Disappearance: The Missing Persons of Iraq’, Global Research, November 29, 2010, available at: http://www.globalresearch.ca/enforced-disappearance-the-missing-persons-of-iraq/22164.

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invasion and continues to occur during the ongoing conflict. According to some reports, hundreds of thousands were disappeared after the 2003 invasion of Iraq by US forces, until the end of 2010.51 These figures are estimated through looking at the number of unidentified bodies, cemetery statistics, morgue records and similar data.52 Disappearances have also been documented by United Nations Assistance Mission for Iraq (UNAMI) on 2006.53

In Syria, following the civil uprisings in 2011, thousands have been subjected to enforced disappearances by members of the intelligence service, at detention facilities and torture centres around the country.54 After being abducted, prisoners get subjected to draconian methods of torture, and remain incommunicado from the outside world. Family members still cannot obtain information on the fate or whereabouts of these detainees due to the ongoing conflict.55

In the Arabian Peninsula, and more alarmingly in Yemen56 and United Arab Emirates57, it is also common to intimidate political opponents through unlawful arrests and torture. Political opponents are unlawfully detained by security agents who operate outside the law with full impunity, while in almost all situations their whereabouts remain secret and they are not given access to legal counsel.

7. Conclusion - Contemporary forms

Enforced disappearances continue to occur in contemporary forms. As part of the ‘war on terror’ secret detentions, 58 incommunicado detentions (proxy detentions),

51 Human Rights Council, the 9th Session of the Universal Periodic Review, The Review of the United States of America, Report Submitted by The Iraqi Association Against War (IAAW) and The Indian Movement (TUPAJ AMARU), November 2010, available at: http://lib.ohchr.org/HRBodies/UPR/Documents/session9/US/JS25_JointSubmission25.pdf.52 D. Adriaensens, ‘Enforced Disappearance: The Missing Persons of Iraq’, Global Research, 29 November 2010, available at: http://www.globalresearch.ca/enforced-disappearance-the-missing-persons-of-iraq/22164.53 Human Rights Report, United Nations Assistance Mission for Iraq (UNAMI), 1 November - 31 December 2006, available at: http://www.ohchr.org/EN/Countries/MENARegion/Pages/UNAMIHRReports.aspx.54 Human Rights Watch Report “Torture Archipelago Arbitrary Arrests, Torture, and Enforced Disappearances in Syria’s Underground Prisons since March 2011”, ISBN: 1-56432-906-2, July 2012, page 6.55 Human Rights Watch Report “Torture Archipelago Arbitrary Arrests, Torture, and Enforced Disappearances in Syria’s Underground Prisons since March 2011”, ISBN: 1-56432-906-2, July 2012, page 11.56Human Rights Watch, News Release ‘Yemen: Detained, Tortured, and Disappeared Yemenis Describe Illegal Detentions, Abuse by Security Forces’, May 7, 2012, available at: http://www.hrw.org/news/2012/05/07/yemen-detained-tortured-and-disappeared.57 Human Rights Watch, World Report 2013, available at:http://www.hrw.org/world-report/2013/country-chapters/united-arab-emirates.58 UN Human Rights Council, Joint Study On Global Practices In Relation To Secret Detention In The Context Of Countering Terrorism, A/HRC/13/42, 19 February 2010, § 8: “[…] a person is kept in secret detention if State authorities acting in their official capacity, or persons acting under the orders thereof, with the authorisation, consent, support or acquiescence of the State, or in any other situation where the action or omission of the detaining person is attributable to the State, deprive persons of their liberty; where the person is not permitted any contact with the outside world(“incommunicado detention”); and when the detaining or otherwise competent authority denies, refuses to confirm or deny or actively conceals the fact that the person is deprived of his/her liberty hidden from the outside world, including, for example, family, independent lawyers or non-governmental organisations, or refuses to provide or actively conceals information about the fate or whereabouts of the detainee. In the present report, the term ‘detention’ is used synonymously with ‘deprivation of liberty’, ‘keeping in custody’ or ‘holding in custody’.” It is clearly stated in the report that every “secret detention” amounts to enforced disappearance and if resorted to in a widespread and systematic manner, it may

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extraordinary renditions are used as ‘legitimate’ methods to achieve anti-terrorism objectives. Yet, most cases lead to disappearances of the prisoners, and total exclusion of them from the protection of the law for a prolonged period of time. With the development of international law on extraterritorial responsibility of states, it is arguable that States involved in the war against terrorism are committing the offence of ‘enforced disappearance’ and breaching their obligations under international law. Not only as part of the war on terror, but organized crime has become another means for the perpetration of enforced disappearance. The incident in Mexico intensified the debate on ‘indirect’ State involvement and/or the responsibility of non-State actors for the crime of enforced disappearance. Peculiar incidents of disappearances occur when for example, the terrorist organization, which claims statehood on the Northern territory of Iraq, ISIS/ISID continues to abduct members of minority members of Yezidi, Christian, and Shia groups in Iraq.59 Or when, on 2014 another terrorist organization named Boko Haram abducted schoolgirls in Nigeria whose whereabouts were concealed for a long time. The past, recent and current incidents of enforced disappearance manifest the ‘global’ nature of this crime, and the need for a more efficient, victim-oriented perspective especially at the national level of implementation, complementing existing mechanisms to guarantee justice for past incidents, prevent future incidents and to protect victims and the human rights defenders of enforced disappearance.

Enforced disappearances are not limited to the examples given in this chapter either. The aim for this overview is to demonstrate that enforced disappearances occur everywhere without exception of time in history and location. While it is impossible to cover every situation of enforced disappearance that has been committed in history, not all of these situations have resulted in any legal action either. Not all countries have ratified the Convention, nor they have accepted complaint-handling mandate of human rights monitoring bodies or the jurisdiction of regional courts. Thus, there are not concluding observations, court decisions or country reports drafted by human rights experts that would enable us to analyze the legal solutions for fighting enforce disappearances in every country. Therefore, the focus in this chapter will be on practices of enforced disappearances that have led to domestic or international legal proceedings.

B. Legal development of the prohibition of enforced disappearance

1. Introduction

Under current international law, ‘enforced disappearance’ is prohibited under international human rights law, international criminal law and international humanitarian law. Yet in fact, the conduct has been considered for a longer time to be unlawful under international law, since it violates a wide range of rights already established under international law. The recent International Convention on Enforced Disappearances not only prohibits enforced disappearance but also regulate States’ obligation to criminalize enforced disappearance60 and more significantly, recognizes the right not to be subjected to enforced disappearance as

even reach the threshold of a crime against humanity.59 Amnesty International, Report 2014/2015, The State of the World’s Human Rights, at 41.60 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, entry into force 23 December 2010, article 4: “Each State party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law”.

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a human right of its own and regulates States’ obligation to respect, protect and fulfill the right not to be subjected to enforced disappearance and its consequences.61 Furthermore, the Rome Statute of the International Criminal Court enumerates and defines enforced disappearance under articles 7(1)(i)62 and 7(2)(i)63 as a crime against humanity. Finally, enforced disappearance is recognized as a breach of IHL under rule 98 of Customary IHL. Consequently, acts pertaining to enforced disappearance can effectuate civil responsibility of States and criminal liability of individuals.

In 1975, the General Assembly and the Human Rights Commission condemned disappearances in Cyprus64 and Chile,65 but the terms used for the disappeared were ‘missing persons’ and ‘individuals not accounted for’ respectively. It was not until 1978 when the General Assembly adopted Resolution No. 33/173,66 that ‘disappeared persons’ were recognized as a legal term under international law.67 And it was not until the adoption of the Declaration on Forced or Involuntary Disappearance that enforced disappearance was prohibited under international law.68 And it was only in 1994 when the Inter-American Convention was adopted that a legally binding instrument prohibited enforced disappearances.69 Yet, historically, since enforced disappearances were practiced much earlier and violated wide range of rights under international law, there is consensus on the origin of its illegality even before its formal prohibition under international law, although opinions differ on the origin of its criminal prohibition.

Following the Night and Fog decree during WW II, decisions of the trials of Keitel and other high-level German officers at IMT and NMT have since become part of international law and the reasoning behind their conviction for implementing the

61 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, entry into force 23 December 2010, article 1(1): “No one shall be subjected to enforced disappearance”.62 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 7(1): “For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: […] (i) Enforced disappearance of persons.”63 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 7 (2): “For the purpose of paragraph 1: […](i) ‘Enforced disappearance of persons’ means 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 of time”.64 UN General Assembly, Resolution 3450 (XXXX), 9 December 1975 and Commission on Human Rights Resolution 4 (XXXI), 13 February 1975.65 UN General Assembly, Resolution 3448 (XXX), 9 December 1975.66 UN General Assembly, Resolution No.33/173.67 UN Human Rights Council, Joint Study On Global Practices In Relation To Secret Detention In The Context Of Countering Terrorism, A/HRC/13/42, 19 February 2010, § 87.68 UN General Assembly, Resolution A/RES/47/133, Declaration on the Protection of All Persons from Enforced Disappearance, 18 December 1992, article 2 (1): “No State shall practice, permit or tolerate enforced disappearances”, (2): “States shall act at the national and regional levels and in cooperation with the United Nations to contribute by all means to the prevention and eradication of enforced disappearance”, article 6 (2): “Each State shall ensure that orders or instructions directing, authorizing or encouraging any enforced disappearance are prohibited”.69 OAS, Inter-American Convention on Forced Disappearance of Persons, 33 I.L.M. 1429 (6 September 1994), entered into force 28 March 1996, article 1: “The States Parties to this Convention undertake: a. Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.”

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Decree and leading to the disappearance of thousands is being considered part of international law. In this regard, Finucane gives an account of the origin of criminal prohibition of enforced disappearance in the laws of war rather than in human rights law.70 However, there are contrasting views on the origin of criminal prohibition of enforced disappearance. Antonio Cassese, for instance has the view that:

ICC Statute has not codified existing customary law but contributed to the crystallization of a nascent rule, evolved primarily out of treaty law (that is, the numerous treaties on human rights prohibiting various acts falling under this heading), as well as the case law of the Inter-American Commission and Court of Human Rights, in addition to a number of UN General Assembly Resolutions. These various strands have been instrumental in the gradual formation of a customary rule prohibiting enforced disappearance of persons. The ICC Statute has upheld and laid down in a written provision of the criminalization of this conduct.71

Following Nuremberg trials, during the ICTY proceedings, enforced disappearance was recognized as a crime against humanity also when not committed within an armed conflict.72 Today the International Convention on Enforced Disappearances itself criminalizes the offence, also when they do not amount to war crimes or crimes against humanity. From Nuremberg trials to today, enforced disappearance has evolved into generating both individual liability and civil liability. At the current stage of international law, within or outside the context of conflict, as a human rights violation, a war crime and a crime against humanity, States have the obligation to avoid the practice of enforced disappearance and criminalize it under their domestic systems and have to effectively exercise jurisdiction over the crime.

International human rights law, international criminal law and international humanitarian law have different objectives and they regulate different types of liability and give definitions of enforced disappearance in different contexts. However, the phenomenon of enforced disappearances stands at the intersection of human rights law, humanitarian law and international criminal law. Therefore, it is not possible to fully understand the definition of enforced disappearances in these different bodies of law without understanding how they have progressed historically. The legal background on the illegality and the criminalization of enforced disappearance under different fields of law will be given on this section looking at how different bodies classified the offence in their decisions. Secondly, if and in which ways this classification influenced the definitions reached today 70 B. Finucane, ‘Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War’, 35 Yale Journal of International Law (2009) 171-197, at 172.71 See A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2nd ed, 2008), 98-126, at 113: “It may be noted that with respect to this crime the ICC Statute has not codified existing customary law but contributed to the crystallization of a nascent rule, evolved primarily out of treaty law (that is, the numerous treaties on human rights prohibiting various acts falling under this heading), as well as the case law of the Inter-American Commission and Court of Human Rights, in addition to a number of UN General Assembly Resolutions. These various strands have been instrumental in the gradual formation of a customary rule prohibiting enforced disappearance of persons. The ICC Statute has upheld and laid down in a written provision of the criminalization of this conduct”.72 ICTY, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, 15 July 1999, § 140-141; ICTY, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, The Prosecutor v. Kupreskic, Case No. IT-95-16-T, 14 January 2000, §577.

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under international human rights and criminal law, with the aim to understand the origin of the prohibition of enforced disappearance under different fields of international law. This analysis will further enable to understand the elements of the crime defined in the Convention and the Rome Statute, distinguishing the nature of enforced disappearance under each body of law and their contextual divergence and intersection.

2. International tribunals

(a) Nuremberg Trials

When we look at the legal origin of enforced disappearances, although not specifically included in the Charter of the tribunals, during the Nuremberg trials enforced disappearance was considered to be both a war crime and a crime against humanity. In the Keitel case of International Military Tribunal (IMT), 73 enforced disappearance was distinguished from other crimes such as execution or unlawful detention, due to the intention of the field Marshal Wilhelm Keitel to create efficient intimidation “under circumstances which would deny any information with regard to their fate”; elements which were seen criminal in themselves. In its judgment IMT characterized the Night and Fog programme as a war crime violating Article 46 of the Hague Regulations, which provides protection for the rights, honor, property and religion of the family, and article 6(b) of the Charter of the International Military Tribunal, which is “declaratory of the existing laws of war expressed by the Hague Convention”.74 Following IMT, U.S. Military Tribunal at Nuremberg (NMT) was created to try lower-ranking German war criminals. Following the precedent created by the Keitel case,75 in the Justice case, the NMT found violations of not only laws of war but also laws of humanity and criminal laws of all civilized nations.76 Thus, NMT characterized enforced disappearances committed as part of the Night and Fog programme to be war crimes against civilians and crimes against humanity. The “systematic terrorism” was seen to be breaching laws of humanity and international common law relating to recognize

73 IMT, The Trial of German Major War Criminals, Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany, 14 November 1945-1 October 1946.74 IMT The Trial of German Major War Criminals, Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany, 14 November 1945-1 October 1946, at 44, 289, 290; Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907. Annex to the Convention: Regulations respecting the laws and customs of war on land - Section III : Military authority over the territory of the hostile state, art. 46: “Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated”; IMT, Charter of the International Military Tribunal, article 6: “The Tribunal established by the Agreement referred to m Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity”.75 B. Finucane, ‘Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War’, 35 Yale Journal of International Law (2009) 171-197, at 178.76 NMT, Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No.10, Nuernberg, October 1946-April 1949, at 1057-1058.

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human rights.77 Although it is significant for being a precedent, enforced disappearance was a crime only in the context of conflict in these decisions.

In terms of the definition of enforced disappearance, in the Keitel case, the distinguishing element of enforced disappearance from unlawful arrest or execution are the intimidation aimed to be created and the circumstances in which information on the fate of the prisoners would be denied. However, enforced disappearance was seen to have violated the rights of the families rather than individual rights and liberties of the prisoners.78 In the Justice case, crime’s distinguishing elements are the secrecy as far as the prisoner’s family is concerned, and intimidation achieved through creating an anxiety in the minds of the family of the prisoners.79 The tribunal emphasized that the programme had the purpose of making civilians disappear without a trace and their fate to remain secret and thus considered it as inhumane treatment, to prisoners and to the family.

(b) International Criminal Tribunal of Yugoslavia

ICTY is the first established international criminal tribunal after the Nuremberg trials. During the ICTY proceedings, enforced disappearance was adjudicated as a crime against humanity in the Kupreskic and Kvocka cases.80

Neither article 3 of the Statute of ICTR81, nor article 5 of the Statute of ICTY82 includes a separate category of “enforced disappearance”. Yet, the Tribunal in the Kupreskic case identified “enforced disappearance” as an “other inhumane act” under Article 5(i) of the Statute of ICTY.83 According to the Tribunal, this category

77 NMT, Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No.10, Nuernberg, October 1946-April 1949, at 1058.78 B. Finucane, ‘Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War’, 35 Yale Journal of International Law (2009) 171-197, at 178.79 NMT, Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No.10, Nuernberg, October 1946-April 1949, at 1057.80 ICTY, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, The Prosecutor v. Kupreskič, Case No. IT-95-16-T, 14 January 2000; ICTY, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, The Prosecutor v. Kvočka et al., Case No. IT-98-30/1-T, 2 November 2001.81 ICTR, Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, adopted by Security Council resolution 955 (1994) of 8 November 1994, article 3: “Crimes against Humanity The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: a) Murder; b) Extermination; c) Enslavement; d) Deportation; e) Imprisonment; f) Torture; g) Rape; h) Persecutions on political, racial and religious grounds; i) Other inhumane acts”.82 ICTY, Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by Security Council resolution 827, on 25 May 1993, article 5: “ Crimes against humanity: The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts”.83 ICTY, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, The Prosecutor v. Kupreskic, Case No. IT-95-16-T, 14 January 2000.

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is not contrary to the principle of ‘specificity’ of criminal law, and indeed is “deliberately designed as a residual category, as it was felt to be undesirable for this category to be exhaustively enumerated”.84 To interpret the parameters of “other inhuman acts” the Courts refers to the standards of human rights in international human rights conventions, and concludes that if acts prohibited under human rights conventions85 are committed in a systematic and widespread manner and thus are “as serious as the other classes of crimes provided for in the other provisions of Article 5”,86 through “resort to the ejusdem generis rule for the purpose of comparing and assessing the gravity of the prohibited act may be warranted”.87 Since enforced disappearance is a multiple and continuous violation of many rights,88 it falls under the category of “other inhumane acts.

In addition, the Tribunal examined the customary international law and stated that since the gradual crystallization of customary law after 1945, “the link between crimes against humanity and war crimes disappeared”,89 reiterating what the Tribunal has stated in the Tadic case. 90 By saying so, the Tribunal recognized

84 ICTY, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, The Prosecutor v. Kupreskic, Case No. IT-95-16-T, 14 January 2000, §563.85 ICTY, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, The Prosecutor v. Kupreskič, Case No. IT-95-16-T, 14 January 2000, § 566: “inhuman or degrading treatment is prohibited by the United Nations Covenant on Civil and Political Rights (Article 7), the European Convention on Human Rights, of 1950 (Article 3), the Inter-American Convention on Human Rights of 9 June 1994 (Article 5) and the 1984 Convention against Torture (Article 1).829 Similarly, the expression at issue undoubtedly embraces the forcible transfer of groups of civilians (which is to some extent covered by Article 49 of the IVth Convention of 1949 and Article 17(1) of the Additional Protocol II of 1977), enforced prostitution (indisputably a serious attack on human dignity pursuant to most international instruments on human rights), as well as the enforced disappearance of persons (prohibited by General Assembly Resolution 47/133 of 18 December 1992 and the Inter-American Convention of 9 June 1994)”.86 ICTY, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, The Prosecutor v. Kupreskic, Case No. IT-95-16-T, 14 January 2000, § 566.87 ICTY, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, The Prosecutor v. Kupreskic, Case No. IT-95-16-T, 14 January 2000, § 566.88 ICTY, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, The Prosecutor v. Kupreskic, Case No. IT-95-16-T, 14 January 2000, § 678: For instance, the Inter-American Court of Human Rights has repeatedly held that the “forced disappearance of human beings is a multiple and continuous violation of many rights under the [American] Convention [on Human Rights] that the States Parties are obligated to respect and guarantee”. The Court rightly noted that the kidnapping of a person is contrary to Article 7 of the Convention, prolonged isolation and deprivation of communication is contrary to Article 5, while secret execution without trial followed by the concealment of the body is contrary to Article 4.944 In another case dealing with the illegal detention and subsequent killing of two persons by Colombian armed forces, the Court held that the respondent State had breached Article 7, laying down the right to personal liberty, and Article 4, providing for the right to life.89 ICTY, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, The Prosecutor v. Kupreskic, Case No. IT-95-16-T, 14 January 2000, §577.90 ICTY, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, 15 July 1999, § 140: As the Prosecutor observed before the Trial Chamber, the nexus between crimes against humanity and either crimes against peace or war crimes, required by the Nuremberg Charter, was peculiar to the jurisdiction of the Nuremberg Tribunal. Although the nexus requirement in the Nuremberg Charter was carried over to the 1948 General Assembly resolution affirming the Nuremberg principles, there is no logical or legal basis for this requirement and it has been abandoned in subsequent State practice with respect to crimes against

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enforced disappearance as a crime against humanity when not committed during a conflict situation.

3. International Human Rights Bodies

Regional human rights courts and the Human Rights Committee do not have the mandate to establish individual liability. Their jurisprudence contributes in developing the legal standards for the civil liability of States. In other words, international human rights bodies are not part of the legal development of the criminalization of enforced disappearance, but they are part of the legal development of the illegality of the offence and their jurisprudence is reflected in the International Convention for the Protection of All Persons from Enforced Disappearance. Although it is States’ liability at issue, the jurisprudence of regional human rights courts and bodies nevertheless shed light on the underlying conduct of enforced disappearance.

Before the drafting of a legally binding document on “enforced disappearance”, the definition and the legal tools to fight with the offence and to provide protection and remedies to the victims have been developed by several international human rights bodies. Up until 1978, the term ‘enforced disappearance’ did not exist as a legal term under international law. Until the Declaration in 1992, there has been no definition of enforced disappearance either and it was not until the 1994 Inter-American Convention that a legally binding instrument on enforced disappearances existed. However, enforced disappearance is an offence that violates multiple rights and freedoms protected under international human rights treaties and conventions, and thus international human rights bodies were able to detect violations of enforced disappearance relying on other articles of the human rights instruments. The Human Rights Committee, the Inter-American Court of Human Rights and the European Court of Human Rights and domestic courts are the main bodies that have decided on enforced disappearance cases and contributed to the legal development of the concept.

In terms of the definition of enforced disappearance these bodies identified the elements of the crime, based on extensive evaluation of different forms of the crime, and the manner in which it is committed in different contexts. Also, while assessing exhaustion of domestic remedies they have identified procedural obstacles to victims, in terms of accessing archives, collecting evidence, burden of proof for the victims to prove the elements of the crime. International human rights bodies developed the practice of the reversal of burden of proof to States that are not cooperating or providing information. Also, taking into account the nature of the crime, and the difficulty in reaching evidence against the State, Courts

humanity. Most notably, the nexus requirement was eliminated from the definition of crimes against humanity contained in Article II(1)(c) of Control Council Law No. 10 of 20 December 1945. (Control Council Law No. 10, Control Council for Germany, Official Gazette, 31 January 1946, at p. 50.). The obsolescence of the nexus requirement is evidenced by international conventions regarding genocide and apartheid, both of which prohibit particular types of crimes against humanity regardless of any connection to armed conflict, §141: It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all. Thus, by requiring that crimes against humanity be committed in either internal or international armed conflict, the Security Council may have defined the crime in Article 5 more narrowly than necessary under customary international law. There is no question, however, that the definition of crimes against humanity adopted by the Security Council in Article 5 comports with the principle of nullum crimen sine lege.

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developed more reasonable evidential standards and started accepting circumstantial or indirect evidence,91 logical inference92 and presumptions.

(a) Human Rights Committee

The Human Rights Committee’s decisions on enforced disappearances are important in two aspects. First of all, it is the first human rights body to make decisions on enforced disappearances. Secondly, it is the only body with monitoring mandate of an international scale, which gives account of enforced disappearances all around the world, rather than just in one region. The Committee started to receive communications on enforce disappearance after the establishment of United Nations Working Group on Enforced and Involuntary Disappearances, upon continuation of the victims’ request for justice.93 Although the HRC does not produce binding decisions, its contribution in terms of the legal development of the concept of enforced disappearance should not be under-estimated. It was in 1982 when the HRC made its first decision on enforced disappearance94 with the Bleier v. Uruguay case.95 Even with this first case, the Committee faced with non-cooperation of the State, through not providing information and not addressing allegations properly. It was also on this first decision that the Committee established the principle of reversal of proof, which will later become the common practice for most cases of enforced disappearances.96

In 1983, with the case Quinteros v. Uruguay, the Committee for the first time considered the mother of the disappeared person to be a victim of the violation of the Covenant herself, especially article 7 (the prohibition of torture).97 In line with this approach, later in El-Megreisi v. Libyan Arab Jamahiriya the Committee has become the first international body98 to consider prolonged incommunicado detention in an unknown location as torture and cruel and inhuman treatment.99 Also in Quinteros v. Uruguay, the principle of reversal of burden of proof has been reiterated, which is necessary for the victims to access justice, and without which they would be completely denied of justice.100

91 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 70; IACHR, Case Godinez Cruz v. Honduras, judgment of 20 January 1989, Ser. C No. 5 (Merits), § 87; IACHR, Case Fairen Garbi and Solis Corrales v. Honduras, judgment of 15 March 1989, Ser. C No. 6 (Merits), § 102.92 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 124.93 I. Pervou, ‘The Convention fort he Protection of All Persons from Enforced Disappearance: Moving Human Rights Protection Ahead’, 5 European Journal of Legal Studies (2012) 145-171.94 T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Leiden: Martinus Nijhoff Publishers, 2007), at 102.95 HRC, Bleier v Uruguay, Communication 30/197829 March 1982.96 See also, HRC, Baboeram-Adhin and others v Suriname, Communication 146/1983, 4 April 1985, §14.2; HRC, Conteris v Uruguay, Communication 139/1983, 17 July 1985, § 7.2; HRC, Graciela Ato del Avellanal v Peru, Communication 202/1986, 31 October 1988, § 9.2; HRC, Bleier v Uruguay, Communication 30/1978, 29 March 1982, § 13.3; see also, T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Leiden: Martinus Nijhoff Publishers, 2007), at 104.97 HRC, Case Quinteros v. Uruguay, Communication No. 107/1981, 21 July 1982, §14.98 T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Leiden: Martinus Nijhoff Publishers, 2007), at 110.99 HRC, El-Megreisi v. Libyan Arab Jamahiriya, Communication No. 440/1990, 23 March 1994, § 5.4.100 T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Leiden: Martinus Nijhoff Publishers, 2007), at 107.

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Two cases that are most relevant to the definition of enforced disappearance are recent cases of Yurich v. Chile101 and Bousroual v. Algeria,102 which are considered as ‘steps backward’103. In both cases, the Committee referred to the definition of enforced disappearance in the Rome Statute and overlooked at the continuous nature of the enforced disappearance,104 giving priority to the objection by the State on ratione temporis non-admissibility of the case. The Committee furthermore required the victims of the case to show that acts committed by the State to “constitute a confirmation of the enforced disappearance” and also merely accepted the ‘passive consent’ by the State of having committed the acts as a way of evading its responsibility. In the dissenting opinion of Committee Members Ms. Christine Chanet, Mr. Rajsoomer Lallah, Mr. Michael O’Flaherty, Ms. Elisabeth Palm and Mr. Hipolito Solari-Yrigoyen,105 the continuous nature of the offense is acknowledged and the possibility of the State to evade its responsibility by simply accepting the acts, without providing evidence that it has used all available means to determine the whereabouts of the person is criticized. Since this was not done, dissenting members of the Committee did not agree to the decision of finding of no violation. However, more relevant to the definition of the offence, in the individual dissenting opinion, the members of the Committee are criticizing the Committee’s decision for overlooking the fact that it must apply the Covenant, the whole Covenant and nothing but the Covenant. In the Committee’s decision, the definition in the Rome Statute is referred to identify the offence. Members who signed the dissenting opinion point out to the fact that the definition in the Rome Statute differs from the one in the (then) Draft International Convention for the Protection of All Persons from Enforced Disappearance. Two fundamental elements of the violation included in the definition in the Rome Statute are a) the initial act of arrest, detention or abduction, and b)refusal to acknowledge that deprivation of freedom. By referring to the narrower definition of enforced disappearance, the Committee disregards the broader obligations to investigate and to take all the necessary measures to find the fate and whereabouts of the disappeared person and adopts a solution that is too easily discharging the State from its responsibility. Already before the adoption of the Convention, the definition in the Rome Statute was considered too limited firstly, in determining State responsibility and secondly, in securing full protection to the victims.

The limited consideration on the victims’ case is developed in its following decision on enforced disappearances Bousral v. Algeria. In this decision, although the Committee recalled the definition of enforced disappearance in the Rome Statute again, it also emphasized that “any act of such disappearance constitutes a violation of many of the rights enshrined in the Covenant, including the right to liberty and security of the person (article 9), the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (article 7), and the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person (article 10). It also violates or constitutes a grave threat to the right to life (article 6)”. 106 The Committee has also

101 HRC, Yurich v. Chile, Communication No. 1078/2002, 24 April 2005.102 HRC, Bousroual v. Algeria, Communication No. 992/2001, 24 April 2006.103 T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention, (Leiden: Martinus Nijhoff Publishers, 2007), at 125.104 HRC, Bleier v Uruguay, Communication 30/1978, 29 March 1982, § 9.2.105 HRC, Yurich v. Chile, Communication No. 1078/2002, 24 April 2005, Individual (dissenting) Opinion of Committee members Ms. Christine Chanet, Mr. Rajsoomer Lallah, Mr. Michael O’Flaherty, Ms. Elisabeth Palm and Mr. Hipolito Solari-Yrigoyen.106 HRC, Bousroual v. Algeria, Communication No. 992/2001, 24 April 2006, §9.2

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pointed out that “where the allegations are corroborated by evidence submitted by the author and where further clarification of the cases depends on information exclusively in the hands of the state party, the Committee may consider the author's allegations as substantiated in the absence of satisfactory evidence and explanation to the contrary submitted by the state party”.107 Accordingly, the Committee acknowledged that the burden of proof cannot solely be on the author of the communication, considering the victim and the State do not always have equal access to the evidence, and indeed, in most cases only the State itself has access to relevant information.108

(b) Inter-American Court of Human Rights

After the end of the Dirty War, transition to democracy was not smooth in Latin America. Until after around two decades, the tension between the military and the newly elected governments disabled Latin American States to effectively prosecute and punish ex-military members responsible from planning, structuring and implementing enforced disappearance programme as a military and political tool to suppress opposition groups. Sensitive domestic political balance rendered it impossible to establish individual liability for war crimes and crimes against humanity of the ex-military members. Self-enacted amnesty laws blocked possibility of prosecution at the domestic level. While victims were not able to learn the truth about their relatives, be remedied and pursue justice through criminal cases establishing liability of individuals, Inter-American Court was satisfying demands of justice through establishing civil liability of States.

The first decision on enforced disappearance was given by the IACHR on 1982, in the case of Velasquez Rodriguez v. Honduras.109 In its first decisions on enforced disappearance before the IACHR, the Court highlights the complexity of the phenomenon and its complicated character:

The phenomenon of disappearances is a complex form of human rights violation that must be understood and confronted in an integral fashion.110

The court also points out that it is an offence violating multiple rights and is a continuous111 offence:

The forced disappearance of human beings is a multiple and continuous violation of many rights under the Convention that the States Parties are obligated to respect and guarantee. The kidnapping of a person is an arbitrary deprivation of liberty, an infringement of a detainee's right to be taken without delay before a judge and to invoke the appropriate procedures to review the legality of the arrest,

107 HRC, Bousroual v. Algeria, Communication No. 992/2001, 24 April 2006, §9.4.108 HRC, Bousroual v. Algeria, Communication No. 992/2001, 24 April 2006, §9.4.109 Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Leiden: Martinus Nijhoff Publishers, 2007), at 132.110 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 150.111 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 150 and 155: “The forced disappearance of human beings is a multiple and continuous violation of many rights under the Convention that the States Parties are obliged to respect and guarantee”; see also, IACHR, Case Godinez Cruz v. Honduras, judgment of 20 January 1989, Ser. C No. 5 (Merits), § 158 and 163 and IACHR, Case Fairen Garbi and Solis Corrales v. Honduras, judgment of 15 March 1989, Ser. C No. 6 (Merits), § 147.

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all in violation of Article 7 of the Convention, which recognizes the right to personal liberty.112

Moreover, prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being. Such treatment, therefore, violates Article 5 of the Convention, which recognizes the right to the integrity of the person.113

To determine civil liability of the State, the court relies on the proof of the findings that, a practice of disappearances was carried out or tolerated by the State officials and thus the person eventually disappeared within the framework of that practice, and finally due to State’s failure to guarantee the human rights acted as a result of this practice.114 However, there is lack of “normative reference”115 on the prohibition of enforced disappearance or a legal definition for the Court at the time to establish a violation. The Court points out to the distinct and serious nature of disappearances when used as a political tool, creating “a general state of anguish, insecurity and fear”, and to the fact that it is being practiced worldwide. 116 Apart from its universality, the Court deduces an international obligation to stop disappearances and to remedy the victims and to punish the responsible, by looking at the establishment of the Working Group on Enforced or Involuntary Disappearances, by Human Rights Commission and United Nations General Assembly resolutions, other reports by UN special envoys and also within the reports of the General Assembly of OAC and the Commission. 117

Through the Inter-American Courts’ decisions, an account of the legal development of enforced disappearance as a crime against humanity within the Inter-American system is given, too. Although there was not a treaty categorizing enforced disappearance per se as a crime against humanity, the Court refers to for example, a resolution of the General Assembly of the OAS declaring the offence to be “an affront to the conscience of the hemisphere and constitutes a crime against humanity”118 and that "this practice is cruel and inhuman, mocks the rule of law, and undermines those norms which guarantee protection against arbitrary detention

112 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 155.113 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 156.114 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 148.115 Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention, (Leiden: Martinus Nijhoff Publishers, 2007), at 133.116 IACHR, Case Velazquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 149: “Disappearances are not new in the history of human rights violations. However, their systematic and repeated nature and their use not only for causing certain individuals to disappear, either briefly or permanently, but also as a means of creating a general state of anguish, insecurity and fear, is a recent phenomenon. Although this practice exists virtually worldwide, it has occurred with exceptional intensity in Latin America in the last few years”.117 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 151-152.118OAS General Assembly Resolution, AG/RES.666 (XIII-0/83) of November 18, 1983. See also, IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 153.

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and the right to personal security and safety"119 and that the State is subject to law and morality.120 In later decisions, the Court reiterated the jus cogens obligations of States to prevent enforced disappearances, too:

In brief, the Court finds that, as may be deduced from the preamble to the aforesaid Inter-American Convention, faced with the particular gravity of such offenses and the nature of the rights harmed, the prohibition of the forced disappearance of persons and the corresponding obligation to investigate and punish those responsible has attained the status of jus cogens.121

Even though Inter-American Court is a human rights court, taking into consideration the specific nature of enforced disappearance in conflict situation almost exclusively in Latin America, IACHR regarded some cases of disappearances as part of a general and systematic practice applied by governments.122 However, in some instances, the Court drew away from this line of argumentation, and determined that enforced disappearances have occurred on occasional basis, outside of a State policy, based on strong and sufficient evidence.123

IACHR in its more recent decision of Gomez Polemino v. Peru, compared the domestic definition of enforced disappearance with the draft International Convention.124 Judge Garcia-Ramirez first compares the domestic criminal definition of enforced disappearance with the draft International Convention and reiterates that in the exercising their sovereignty, upon signing international treaties containing definitions of illegal conducts, States have to review their domestic legislation in order to adapt it to the provisions in the said international treaties.125

(c) European Court of Human Rights

Decisions of the ECtHR until recently, has been ambiguous and inconsistent, and not being able to set a criterion that could be applied to all cases of enforced disappearance, and at times too formalistic. The Court and separate judges demonstrated their lack of understanding of the nature, definition and the implications of the offence.126

119 OAS General Assembly Resolution, AG/RES.742 (XIV-0/84) of November 17, 1984. See also, IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 153.120 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 154.121 IACHR, Case Goiburu and others v. Paraguay, judgment of 22 September 2006, Ser. C No. 153 (Merits, Reparations and Costs), § 84. On the Court’s determination on jus cogens obligations of the State, see also, § 93, 128, 130-132.122 IACHR, Case Godinez Cruz v. Honduras, judgment of 20 January 1989, Ser. C No. 5 (Merits), § 154 (b) (i).123 I. Pervou, ‘The Convention for the Protection of All Persons from Enforced Disappearance: Moving Human Rights Protection Ahead’, 5 European Journal of Legal Studies (2012) 145-171, at 148; see also, IACHR, Case Caballero-Delgado and Santana v. Columbia, judgment of 8 December 1995, Ser. C No. 22, § 53.124 IACHR, Case Gomez Palomino v. Peru, judgment of 22 November 2005, Ser. C No. 136 (Merits, Reparations and Costs), Concurring Opinion of Judge Sergio Garcia-Ramirez (the President), § 15, 32.125 IACHR, Case Gomez Palomino v. Peru, judgment of 22 November 2005, Ser. C No. 136 (Merits, Reparations and Costs), Concurring Opinion of Judge Sergio Garcia-Ramirez (the President), § 32.126 I. Pervou, ‘The Convention for the Protection of All Persons from Enforced Disappearance: Moving Human Rights Protection Ahead’, 5 European Journal of Legal Studies (2012) 145-171, at

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Since the European Convention on Human Rights do not include enforced disappearance as a right of its own, the ECtHR have dealt with cases of enforced disappearances regarding the rights violated under the European Convention on Human rights, namely the right to life (article 2), prohibition of torture (article 3), right to liberty and security (article 5), right to family (article 8), right to an effective remedy (article 13). However, the Court has not contributed in qualifying enforced disappearance as a right of its own, and did not identify whether it was practiced in a widespread or systematic manner.127

The first case of enforced disappearance ruled by ECtHR is the Kurt v. Turkey case.128 In the Kurt case Judge Golcuklu asserted in his separate opinion that “Kurt case occurred in a different context to the one that led to the decisions of the Inter-American Court” dissenting to the majority view that the conduct of the State is constitutes enforced disappearance. In this first decision, the judge’s opinion undermines the complexity of the phenomenon and different forms of which enforced disappearance can be practiced as demonstrated in the previous section. Secondly, even a single incident of enforced disappearance can be part of a systematic and widespread attack, which would then be a crime against humanity. The situation in Turkey later showed that the Judge has overlooked the state policy of the defendant State. Finally, nevertheless, the Court should establish human rights violation by States under the European Convention on Human Rights for each individual application regardless of its nature as a crime against humanity regardless of the contextual element.

In its earlier case-law the Court set a high evidentiary standards for the victims of enforced disappearance, requiring evidence “beyond reasonable doubt” to establish substantive violation of right to life and the prohibition of torture.129 Later, ECtHR stretches its procedure by adopting special evidential standards, such as reversal of burden of proof, admission of circumstantial evidence, indirect testimonies and presumptions.130 Realizing the inaccessibility of evidence to victims regarding enforced disappearance cases and facing with States creating a “wall of silence”131 among each other and undermining the ECtHR proceedings, a more flexible approach has been adopted in the later decisions, relying on presumptions and

148.127 T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Leiden: Martinus Nijhoff Publishers, 2007), at 220.128 ECtHR, Case Kurt v. Turkey, Application No. 24276/94, 25 May 1998.129 ECtHR, Case Kurt v. Turkey, Application No. 24276/94, 25 May 1998, § 107; ECtHR, Case Timurtaş v. Turkey, Application No.23531/94, 13/06/2000, § 82-83.130T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention, (Leiden: Martinus Nijhoff Publishers, 2007), at 190.131 On the issue of “Wall of Silence” and States acting as “Subversive Objectives” see, H. Keller and C. Heri, ‘Enforced Disappearance and the European Court of Human Rights’, 12 Journal of International Criminal Justice (2014) 735-750.

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reversal of burden of proof132 in “severe allegations”.133 Later the Court also admitted the circumstantial evidence test, unilateral declarations and the pilot judgment procedures.134 The obstacles States created for the ECtHR and the evolving approach of on evidentiary standards indicate that the Court has developed and broadened its understanding of the serious nature of enforced disappearance and the extreme disadvantage it creates for its victims. The later tools developed by the Court enabled it to establish violations by State parties, despite failure to provide documents, and active obstructions of evidence and non-implementation of its decisions. The standards thus corresponded more to the actual circumstances of the victims, in which once a person is disappeared, not only the disappeared person does not have access to legal remedies but the relatives are not in the position to prove the fate and whereabouts of the person against non-cooperating States.135

4. Domestic decisions

National court decisions of countries where enforced disappearance have been practiced on a large-scale basis, contributed in shaping international law too and normative implications of national decisions are significant in several aspects.136 Firstly, they constitute state practice that is necessary for customary law to emerge alongside opinio juris.137 Secondly, national court decisions are part of the sources of international law as prescribed under article 38 of the Statute of the International Court of Justice. According to the article the ICJ can use “the general principles of law recognized by civilized nations” as its source of law and “judicial decisions and the teachings of the most highly qualified publicists of the various nations” as a subsidiary tool for interpretation.138

In the United States of America, the first decisions in which a federal court of US determined enforced disappearance as a war crime and determined individual liability was Xuncax v. Gramajo, in which a civil damage suit was filed against

132 ECtHR, Case of Varnava and Others v. Turkey, Application Nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, 18 September 2009, § 183: Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (loc. cit.). Thus, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries, death or disappearances occurring during such detention. The burden of proof may then be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21896/93, § 100, ECtHR 2000-VII, and Akdeniz and Others v. Turkey, no. 23954/94, §§ 85-89, 31 May 2001)”.133 H. Keller and C. Heri, ‘Enforced Disappearance and the European Court of Human Rights’, 12 Journal of International Criminal Justice (2014) 735-750, at 738.134 H. Keller and C. Heri, ‘Enforced Disappearance and the European Court of Human Rights’, 12 Journal of International Criminal Justice (2014) 735-750, at 738.135 T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Leiden: Martinus Nijhoff Publishers, 2007), at 190-191.136 M. K. O’Donnell, ‘New Dirty War Judgments in Argentina: National Courts and Domestic Prosecutions of International Human Rights Violations’, 84 New York University Law Review (2009) 333-374, at 369.137 M. K. O’Donnell, ‘New Dirty War Judgments in Argentina: National Courts and Domestic Prosecutions of International Human Rights Violations’, 84 New York University Law Review (2009) 333-374, at 369.138 M. K. O’Donnell, ‘New Dirty War Judgments in Argentina: National Courts and Domestic Prosecutions of International Human Rights Violations’, 84 New York University Law Review (2009) 333-374, at 369.

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former Defense Minister of Guatemala Hector Gramajo in 1990.139 Gramajo was charged with designing, ordering, implementing and directing a program of massacres, murders, disappearances, widespread torture, and arbitrary arrest, known throughout Latin American as the “the Guatemala Solution”, when he was chief military commander.

According to the federal court, enforced disappearance is a war crime and established the civil liability of Garamajo due to the crimes committed during the internal conflict in Guatemala.140 The federal court ruled that “disappearance have been met with universal condemnation and opprobrium” and the practice of enforced disappearance together with torture, and summary executions are inconsistent with the “inherent dignity and of the equal and inalienable rights of all members of the human family”.141 Thus, the federal court of US classified enforced disappearance as a war crime under customary international law.

In terms of the definition of enforced disappearance, the court explains:

The international community has also reached a consensus on the definition of a ‘disappearance.’ It has two essential elements: (a) abduction by a state official or by persons acting under state approval or authority; and (b) refusal by the state to acknowledge the abduction and detention.142

Argentina is unique as it is the first country to overturn the laws that created impunity for the low and middle-rank perpetrators of grave human rights violations committed by the state between 1975 and 1983.143 President Raul Alfonsin enacted a presidential decree on 1983 ordering the investigation and prosecution of former military leaders of human rights violations. The trial144 is the first trial in Latin America through which military leaders are held liable for the acts committed.145 It is also the most important decision in Latin America on military responsibility for human rights violations. According to the decree by Alfonsin military members were not charged with “genocide” or “crimes against humanity”, unlike more contemporary decisions against the same leaders, but with other criminal offences such as homicide, torture and unlawful deprivation of freedom, since at the time “genocide” and “crimes against humanity” were not defined by Argentinian

139 United States District Court, D. Massachusetts, Case Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass 1995), 12 April 1995.140 B. Finucane, ‘Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War’, 35 Yale Journal of International Law (2009) 171-197, at 186.141 United States District Court, D. Massachusetts, Case Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass 1995), 12 April 1995, FN28. 142 United States District Court, D. Massachusetts, Case Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass 1995), 12 April 1995, FN30.143 Pereira and P. Engstrom, ‘From Amnesty to Accountability, The Ebbs and Flows in the Search for Justice in Argentina’, in L. A. Payne and F. Lessa (eds.), Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives (Cambridge, Cambridge University Press, 2012) 97-122, at 97.

144 National Appeals Court (Criminal Division) for the Federal District of Buenos Aires, Case against, Jorge Rafael Videla, Agosti, Emilio Eduardo Massera, Viola, Lambruschini, Galtieri, Lami Dozo, Anaya, 9 December 1985.145 E. Dahl and A. M. Garro, ‘Argentina: National Appeals Court (Criminal Division) Judgment on Human Rights Violations by Former Military Leaders’ (Introductory Note) 26 International Legal Materials (1987) 317-375, at 317.

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laws.146 Although ‘enforced disappearance’ is not among the crimes that the leaders were accused of at the time, according to the judgment, acts and incidents explained under “unlawful deprivation of liberty” is in line with the description of forced disappearances that was practiced systematically in Argentina during the Dirty War. Neither under the international law nor in any domestic law in 1982, enforced disappearance was a crime of its own, nor constituted a human rights offence of its own. It was a crime against humanity under customary international law and had a jus cogens nature, but nevertheless, Argentinian laws lacked a definition. According to the judgment, acts of “unlawful deprivation of freedom” were “characterized by the action of a group of persons with weapons who followed the command of one of the three branches of the armed forces. They wore uniforms or plain clothes, and, after entering into the homes of the victims or having intercepted them in the street when they returned from work, revealed their guns and employed direct physical force against them. At times, the armed individuals took the victims to clandestine detention centres. The competent authorities never ordered warrants of arrest or seizure”.147 Since “enforced disappearance” did not constitute a crime of its own, when the Court applied facts to the criminal definitions acts of forced disappearance fell under a narrower offense of “unlawful deprivation of freedom”, which is only one element of the enforced disappearance. It is understandable as it was not until 1992 Declaration on Forced or Involuntary Disappearance that a definition was provided.

In Guatemala, the Criminal Court of Chimaltenango (Guatemala) issued the first conviction for enforced disappearance of six people in the village Choatalum, San Martin Jilotepeque, Chimaltenango, against military ex-commissioner Felipe Cusanero Coj.148

The Court noted that:

The concealment of the remains of a missing person is a blatant disrespect to them, threatening to break the spiritual bond linking the dead to the living, and undermines the solidarity that must guide bearings of mankind in its temporal dimension. It is a right that derives directly from the principle of human dignity, for the damage caused to the victims not only results in the injury of goods as important as life, liberty and personal integrity, but also in ignorance of what happened to the victims of criminal acts. It argues that the lack of the place where the remains of a loved one, or what happened to him, is perhaps one of the most wickedly subtle but no less violent ways, to affect consciousness and dignity of human beings.149

Defense lawyer of Cusanero Coj did not dispute that his client was involved in the disappearances but appealed to the Supreme Court of Justice, alleging that their client had been condemned for a crime that did not exist under Guatemalan law at

146 E. Dahl and A. M. Garro, ‘Argentina: National Appeals Court (Criminal Division) Judgment on Human Rights Violations by Former Military Leaders’ (Introductory Note) 26 International Legal Materials (1987) 317-375, at 317.147 National Appeals Court (Criminal Division) for the Federal District of Buenos Aires, Case against, Jorge Rafael Videla, Agosti, Emilio Eduardo Massera, Viola, Lambruschini, Galtieri, Lami Dozo, Anaya, 9 December 1985, Application of the Facts to the Criminal Definitions (29731).148 To read the sentence in Spanish, see: http://issuu.com/caldh/docs/sentencia_desaparicion_forzada?e=0.149 Original in Spanish at:http://www.gloobal.net/iepala/gloobal/fichas/ficha.php?entidad=Textos&id=8382&opcion=descripcion#ficha_gloobal .

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http://www.gloobal.net/iepala/gloobal/fichas/ficha.php?entidad=Textos&id=8382&opcion=descripcion#ficha_gloobal

http://www.gloobal.net/iepala/gloobal/fichas/ficha.php?entidad=Textos&id=8382&opcion=descripcion#ficha_gloobal

http://issuu.com/caldh/docs/sentencia_desaparicion_forzada?e=0


the time of its commission. Enforced Disappearance defined under Guatemalan law since 1996. However, the Criminal Chamber of the Supreme Court of Justice of Guatemala considered the forced disappearance was a permanent and continuous crime that exists until the fate of the victims has been was clarified. Furthermore, the Court also held that forced disappearance is a violation of International Humanitarian Law.150

Finally, panels of the Bosnian War Crimes Chamber (“WCC”) have determined that the offence of enforced disappearance was an international crime, namely a war crime and a crime against humanity at the time of the conflict in 1992.151 The appellate panel in the Šimšić case held that if a certain action “is committed with a high degree of cruelty, inhumanity and general criminal conduct, which, in addition, is a part of a plan and system in the crime commission, judges have a discretion to qualify such action as a crime against humanity too.”152 Secondly, to give an account of the prohibition of enforced disappearance under international law, the appellate panel refers to ICTY that categorized enforced disappearance as one of “other inhumane offenses,” which qualify as crimes against humanity.153 Furthermore, the trial panel in Rašević and Tadović observed that enforced disappearance “is a relatively ‘new’ crime, both in itself and as a crime against humanity”.154 However, the panel relies on the jurisprudence of IMT and cites various human rights declaration and resolutions regarding enforced disappearances and the Rome Statute, International Convention on Enforced Disappearance and the Inter-American Convention on the Forced Disappearance of Persons and also quotes the Inter-American Court’s decision in Velasquez-Rodriguez, which stated that “international practice and doctrine have often categorized disappearances as a crime against humanity”155 to support the view that during the conflict in 1992 “the systematic practice of the forced disappearance of persons constitutes a crime against humanity”.

Finucane criticizes the decisions of the WCC on five aspects.156 Firstly, WCC assumes enforced disappearances “indisputably criminal” nature by briefly mentioning IMT’s determination of enforced disappearance as a war crime but does not analyze the reasoning to the tribunal’s judgment, such as violation of family rights and the theories regarding criminality of enforced disappearance. Secondly, WCC overlooks the fact that IMT and NMT considered enforced

150 The official publication of the decision is not available online, thus the author relied on the overview of the case given by trusted sources:http://www.reuters.com/article/2009/09/01/us-guatemala-rights-idUSTRE5800F720090901;http://www.trial-ch.org/en/resources/trial-watch/trial-watch/profiles/profile/776/action/show/controller/Profile/tab/legal-procedure.html; http://www.geneva-academy.ch/RULAC/pdf_state/CALDHfirstcondemn.pdf.151 WCC, Prosecutor v. Šimšić, Case No. X-KR-05/04, First Instance Verdict (July 11, 2006); WCC, Prosecutor v. Šimšić, Case No. X-KRŽ-05/04, Second Instance Verdict (Aug. 7, 2007); WCC, Prosecutor v. Rašević & Todović, Case No. X-KR/06/275, First Instance Verdict (Feb. 28, 2008); WCC, Prosecutor v. Damjanović, Case No. X-KR-05/51, First Instance Verdict (Dec. 15, 2006); WCC, Prosecutor v. Damjanović, Case No. X-KR-05/51, Second Instance Verdict (June 13, 2007).152 WCC, Prosecutor v. Šimšić, Case No. X-KRŽ-05/04, Second Instance Verdict (Aug. 7, 2007), § 47.153 WCC, Prosecutor v. Šimšić, Case No. X-KRŽ-05/04, Second Instance Verdict (Aug. 7, 2007), § 48.154 WCC, Prosecutor v. Rašević & Todović, Case No. X-KR/06/275, First Instance Verdict (Feb. 28, 2008, § 88.155 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 153.156 B. Finucane, ‘Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War’, 35 Yale Journal of International Law (2009) 171-197, at 191.

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http://www.trial-ch.org/en/resources/trial-watch/trial-watch/profiles/profile/776/action/show/controller/Profile/tab/legal-procedure.html

http://www.trial-ch.org/en/resources/trial-watch/trial-watch/profiles/profile/776/action/show/controller/Profile/tab/legal-procedure.html

http://www.reuters.com/article/2009/09/01/us-guatemala-rights-idUSTRE5800F720090901

http://www.geneva-academy.ch/RULAC/pdf_state/CALDHfirstcondemn.pdf


disappearance to be a war crime concerning international armed conflicts and does not substantiate how the decision is applicable to a non-international armed conflict in Bosnia and Herzegovina. Thirdly, the appellate panel of Šimšić holds disappearances constituted crime against humanity without analyzing the Justice case of NMT. Finally and most relevantly to this section, Finucane observes WCC’S failure to distinguish “illegality” from “criminality” in its decisions. Trial panel in Rašević & Todović case, on the ex post facto criminal prosecution, relies on human rights conventions, decisions and declaration by human rights bodies as well as the Rome Statute, which is a criminal law instrument. By doing so, it gives a confusing account of the origin of enforced disappearance under international human rights law and international criminal law and international humanitarian law, in other words the unlawful behavior by states and individual liability of perpetrators. According to Finucane, this confusion undermines the principle of legality and is in the opinion that the problem of ex post facto could have been avoided had the roots of the prohibition of enforced disappearance was found in the international humanitarian law by WCC.

C. The negotiation, adoption and the structure of the International Convention

1. Negotiation and Adoption

Before the creation of a specific international instrument to address enforced disappearances, jurisprudence from international bodies such as the UN Human Rights Committee, the Inter-American Court of Human Rights, the European Court of Human Rights and the domestic decisions helped furthering normative principles relating to the subject of enforced disappearance.

In 2001, the Commission on Human Rights requested an Independent Expert to examine the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance and to identify gaps in order to ensure full protection from enforced or involuntary disappearance.157 In his report, the Independent Expert concluded that the right not to be subjected to enforced disappearances was not established in any universal treaty and that there were many gaps regarding measures of prevention and effective remedies and reparation for victims.158 As a result of these gaps in the international legal framework, he indicated the need for a new treaty.

Following the report of the Independent Expert, the Commission on Human Rights decided in 2003 to elaborate such a treaty. Over 70 States, as well as numerous NGOs, associations of the families of the disappeared and experts participated in the three-year negotiation process. The International Convention for the Protection of all Persons from Enforced Disappearance was finally adopted by the General Assembly in December 2006 and opened for signature on February 2007. It has entered into force on 23 December 2010 after 20 countries ratifying it. As of May 2015 93 states have signed it and 46 states have ratified it.

157 UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances ,E/CN.4/2002/71, 8 January 2002.158 OAS, Inter-American Convention on Forced Disappearance of Persons, 33 I.L.M. 1429 (6 September 1994), entered into force 28 March 1996.

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The Convention is a legally binding instrument, as opposed to the Declaration on the Protection of All Persons from Enforced Disappearance.159 It draws extensively on the provisions of the Declaration, but includes new standards and strengthens others that were already stated in the Declaration. The inclusion in the Convention of a monitoring body is also a major difference between both instruments.

2. Structure of the Convention

The Convention is divided into three parts. Part I contains the substantive provisions and focuses primarily on the obligations of States parties to prevent and punish such crimes. Part II establishes the Committee on Enforced Disappearances. Finally, Part III contains the formal requirements regarding signature, entry into force, amendments and the relationship between the Convention and international humanitarian law. It also notes that any provisions which are more conducive to the protection from enforced disappearances found in international or domestic laws should be applied.

The Convention represents a significant progress in international law, in particular by defining the non-derogable right not to be subjected to an enforced disappearance. Furthermore, the Convention requires States to define enforced disappearance as an independent offence in their domestic criminal law, stipulating its seriousness, which would better reflect the complexity of enforced disappearances and make criminal sanctions more effective.

The Convention affirms that enforced disappearances constitute a crime against humanity when practiced in a widespread or systematic manner. It creates an obligation for States to make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness. Although not creating any additional obligation on States to accede to particular instruments or amend their domestic legislation, article 37 stipulates that instruments which are more conducive to the protection of all persons from enforced disappearance shall apply, including international law in force for that State. Regarding the statute of limitations, the Convention states that the term of limitation begins from the moment when the disappearance ceases160, taking into account its continuous nature.

Among the measures intended to prevent enforced disappearances the Convention includes the express prohibition of secret detention and calls on States to guarantee minimum legal standards around the deprivation of liberty, such as the maintenance of official registers of persons deprived of liberty with a minimum of information and the authorization to communicate with their family, counsel or any other person of their choice. The Convention establishes that, when an alleged perpetrator of an act of enforced disappearance is present in any territory under the jurisdiction of a State Party, such State shall take such measures as may be

159 UN General Assembly, Resolution A/RES/47/133, 18 December 1992.160 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2004/59, 23 February 2004, § 67: “[…] enforced disappearance should be considered a continuing offence as long as the perpetrators continued to conceal the fate and whereabouts of persons who had disappeared and those facts remained unclarified. A compromise formula was proposed, whereby the term would begin “from the moment when the offence of enforced disappearance ceases and at the moment when the fate of the disappeared person is established with certainty.”

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necessary to establish its jurisdiction over the offence, unless it extradites or surrenders the offender to another State in accordance with its international obligations or surrenders the offender her to an international criminal tribunal whose jurisdiction it has recognized.

One of the major developments found in the Convention is article 24, which includes in the definition of “victim” not only the disappeared person but also any individual who has suffered harm as the direct result of an enforced disappearance, such as family members.

This article also establishes the right to truth “regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person”. Although this right had been recognized in the field of humanitarian law and by some international bodies, such as the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights and the Commission on Human Rights, the Convention is the first international instrument to expressly state it.

Article 24 also describes the right to obtain reparation, which covers material and moral damages and include, as appropriate, restitution, rehabilitation, satisfaction and guarantees of non-repetition. Finally, it requires States Parties to take appropriate steps concerning the legal situation of the disappeared persons, particularly with regard to social welfare, financial matters, family law and property rights. This provision can help the families of the disappeared move on with some aspects of their life, such as inheritance and civil status.

The final provision in Part I of the Convention concerns the wrongful removal of children, whether they are subjected to enforced disappearances as individuals or as a consequence of their parent’s disappearance, that is, children who are born during the captivity of a mother subjected to enforced disappearance. In searching and identifying such children, States shall protect the best interests of the children, including their right to preserve or reestablish their identity, nationality, name and family relations. States shall also take all necessary measures to prevent and suppress the falsification, concealment or destruction of documents attesting the true identity of children subjected to enforced disappearance or whose parents’ are victims of a disappearance.

3. Enforcement Mechanism and Functions

Part II of the International Convention contains the international monitoring provisions, that is, the establishment of a Committee on Enforced Disappearance. Since its establishment in 2010, the Committee meets two times a year and consists of ten independent experts who serve in their personal capacity. Members of the Committee are elected for a term of four years and are eligible for re-election once. The Committee monitors the implementation of the provisions of the International Convention for the Protection of All Persons from Enforced Disappearance and is charged with carrying out five different monitoring tasks:

a) To examine reports submitted by States Parties on the measures taken to give effect to their obligations under the Convention.

Under article 29 paragraph 1 of the Convention, every State Party has undertaken the obligation to submit a report to the Committee on the measures taken to give effect to its obligations under the Convention, within two years after the entry into force of

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the Convention for the State Party concerned. The Committee has adopted guidelines161 on the form and content of reports submitted, to ensure that reports are comprehensive and presented in a uniform manner and to reduce the need for the Committee to request further information under article 29 and under rule 48 of its rules of procedure.162 Upon receiving the State Party’s report the Committee informs the State party on the date, duration and the venue of the session which the report will be examined. With this letter the Committee also sends a list of issues, requesting additional information from the State party. Sending of a list of issues aims to facilitate the preparation of the constructive dialogue that takes places during the session which the report will be examined, to provide a focus to the dialogue and to improve the efficiency of the reporting system. In its pre-session period, The Committee will ask the State to answer to its list of issues so that they can be distributed to the Members of the Committee.

The Committee considers that the cooperation of local, national and international civil society actors, especially associations of relatives of disappeared persons, working on the promotion and protection of human rights in general, and on the fight against enforced disappearances in particular, is essential for the promotion and implementation of the Convention.163 In reviewing State party reports, the Committee appreciates information and documentation from the civil society actors, NHRIs, associations of victims’ families, and other stakeholders, as well as contribution from the regional mechanisms, UN system and other sources. Before the session that the report will be examined, unless otherwise determined, any official submission made to the Committee, together with the list of issues and the State party’s answer is posted online under the session at which the State party will be examined. Making the information public and bringing it to the attention of the State party concerned, allows the delegation to be better prepared to respond to questions that may be posed by the Committee on the basis of such information.

The Committee examines a State Party report through conducting a dialogue between the delegation from the reporting State and the Committee members during a public meeting. During the meeting the representatives of the State Party are invited to make a short presentation of their report, in which they can update the information provided in their report and highlight the most relevant matters of the replies to the list of issues. Subsequent to the presentations, the country rapporteurs and other Committee members make comments, ask questions and seek additional information on issues they consider to be requiring clarification. The State Party representatives are then given the floor to reply to the questions posed. In case outstanding questions remain, the Committee may allow the State party to provide supplementary information within 48 hours from the conclusion of the dialogue which will be taken into consideration during the formulation of the Concluding Observations. The presence and participation of the State party during the review of its report is essential for the constructive dialogue to be fruitful and meaningful. However, exceptionally, the Committee may examine in a public meeting a report in the absence of representatives of the State party, if upon notification the State party fails to appear without providing compelling reasons.

161 CED, Committee on Enforced Disappearances, Guidelines on the form and content of reports under article 29 to be submitted by States parties to the Convention, adopted at its second session, (CED/C/2), 26-30 March 2012.162 CED, Committee on Enforced Disappearances, Rules of Procedures, adopted by the Committee at its first and second sessions, (CED/C/1), 22 June 2012.163 CED, Committee on Enforced Disappearances, The relationship of the Committee on Enforced Disappearances with civil society actors, adopted by the Committee at its fifth session, (CED/C/3), 30 December 2013.

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Civil society and NHRI representatives are welcome to attend, as observers to the public meetings during which the Committee reviews States parties’ reports in the presence of the concerned State party’s delegation. In addition, during the sessions, civil society and NHRI representatives will have the possibility of addressing the Committee during formal meetings. Civil society and NHRI representatives may also organize informal briefings (without interpretation) with Committee members.

As a result of its consideration, following an examination of the State Party’s report, the Committee discusses and adopts its Concluding Observation in a closed meeting. A Concluding Observation of a State Party’s report will include a section on the positive aspects regarding the implementation of the Convention followed by another section with subjects of concern and related recommendations. The Committee may identify certain issues of particular concern to be followed up and request additional information in respect of these issues within a specific short period of time. Upon adoption of the Concluding Observation, it is transmitted to the State Party with the possibility of commenting on it. As a final step, the Committee makes public its concluding observations and the comments by the State Party, under the session in which the report was examined. Furthermore, the Concluding Observation is included in the annual report presented by the Committee to the General Assembly of the United Nations in accordance with article 36 of the Convention, including a reference to the comments made by the State Party.

The Committee recommends the State Party to widely disseminate, at the national level and in all appropriate languages, the Concluding Observations as well as State Party’s report and written replies to list of issues.

NHRIs are important actors for the dissemination and implementation of Treaty Bodies’ recommendations on the ground. They should disseminate Concluding Observations as widely as possible within their domestic constituencies and encourage governments to translate them into local languages.164 The Committee also welcomes and encourages the efforts of civil society to enhance outreach and awareness including through training of its Concluding Observations.165 The Committee further encourages civil society actors to make independent efforts to translate the Committee’s documents into local languages.

b) To send urgent communications to States, requesting that they take all the necessary measures, including interim measures, to locate and protect a disappeared person:

According to article 30 of the Convention, the Committee has the competence to receive and consider requests, submitted by the relatives of the disappeared person or their legal counsel or any person authorized by them, as well as any other person having a legitimate interest, that a disappeared person should be sought and found as a matter of urgency. This is the first time that a mandate of such nature is given to a treaty-monitoring body. However, the mandate of the Committee is limited to cases of enforced disappearance which has occurred in a country that is a State Party to the Convention and for situations of enforced disappearance which commenced after the entry into force of the Convention for the State Party concerned according to article 35 of the Convention.166

164 Information Note, National Human Rights Institutions’ (NHRIs) interaction with the UN Treaty Body System, 5 April 2011.165 CED, Committee on Enforced Disappearances, The relationship of the Committee on Enforced Disappearances with civil society actors, adopted by the Committee at its fifth session, (CED/C/3), 30 December 2013.

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c) To receive and consider communications from individuals claiming to be victims of a violation by a State Party of provisions of the Convention:

States parties that so wish may make a declaration under article 31 accepting the competence of the Committee on Enforced Disappearance to consider complaints from individuals subject to its jurisdiction alleging violations of their rights under the Convention by that State. Thus, individuals subject to the jurisdiction of a State party that has made the declaration under article 31 (or persons acting on their behalf) may submit a communication to the Committee, claiming that their individual rights set out in the Convention have been violated by the State party.

It is important to note that according to article 35 of the Convention, the Committee has competence solely in respect of enforced disappearance, which commenced after the entry into force of the Convention. In case a State became party to the Convention after its entry into force, the obligations of that State vis-à-vis the Committee shall relate only to enforced disappearances, which commenced after the entry into force of the Convention for the State concerned.

d) To receive and consider communications in which a State Party claims that another State Party is not fulfilling its obligations under the Convention:

Article 32 of the Convention sets out a procedure for the Committee to consider complaints from one State party which considers that another State party is not giving effect to the provisions of the Convention. This procedure applies only to States parties who have made a declaration accepting the competence of the Committee in this regard. Therefore, a communication will not be considered by the Committee unless both States parties concerned have made declaration under article 32 of the Convention. When the Committee receives communications as such, it is considered at closed meetings and all documents related to the procedure remain confidential.

e) To undertake a visit to a State Party, after consultation with the State concerned, when it receives information indicating that this State is seriously violating the provisions of the Convention:

If the Committee receives reliable information indicating that a State party is seriously violating the provisions of the Convention, it is empowered to request one or more of its members to undertake a visit to the State party concerned and report back. The Committee must notify the State party of its intention to conduct a visit and the State party must answer within a reasonable time. It is possible for the State party to request a delay or cancelling of the visit by giving a substantiated reason and the Committee decides whether it will undertake the visit or not. Following its visit the Committee communicates it observations and recommendation to the State party and may request additional information on the measures taken with a view to implementing its recommendations.

Finally, according to article 34 of the Convention, if the Committee receives well-founded information that enforced disappearances are being practiced on a

166 Also see, UN General Assembly, 69th Session, A/69/56, Report of the Committee on Enforced Disappearances, Annex V, Statement on the ratione temporis element in the review of reports submitted by States Parties under the International Convention for the Protection of All Persons from Enforced Disappearance, discussed and adopted in the Committee’s 5 th session, stating: “The Committee is bound by article 35 in the exercise of its competence and cannot adjudicate individual cases concerning enforced disappearance as such which commenced before the entry into force of the Convention for the State concerned”.

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widespread or systematic basis in a State Party, it may bring the matter to the attention of the General Assembly, through the Secretary-General, after seeking information from the State concerned. It is the first time that a mandate of this kind is given to a treaty-monitoring body. There is then the possibility for the General Assembly, to urge the Security Council to refer the situation to the International Criminal Court. Although not so likely, the information received by the Committee can result in such an action, which is a further deterrent for the States parties.

We see that the International Convention is a result of forty years of efforts under international law. The mechanism it creates is the most conducive for the protection of the victims of enforced disappearance. In this forty years, enforced disappearance was prohibited first as a war crime, later under international criminal law as a crime against humanity, and finally as a human rights violation. Although it is a positive development that all forms of enforced disappearance is prohibited at the current stage, these bodies of norms created competing standards on the definition of enforced disappearance. The focus of the thesis will be on the International Convention and the Rome Statute, two instruments that provide for an international and legally binding definitions of enforced disappearance, one as a crime against humanity and one as a serious crime.

3. 2007 International Convention for the Protection of All Persons from Enforced Disappearance

A. Definition of Enforced Disappearance under the Convention

1. Formulation

Due to the complexity of enforced disappearances and diversity of forms practiced by the governments, it is not easy to conceptualize enforced disappearances. The definition of enforced disappearance is the result of forty years of effort by the international community and a systematic study on the historical and political elements pertaining to this crime. For this reason, the 1992 Declaration was a landmark in establishing a definition for enforced disappearance at the international level while stipulating enforced disappearance to be treated as an offence under the domestic legal orders. Apart from establishing the ‘autonomous nature of the crime’167 it is significant also for leading to a broader debate upon the issue. Although the definition of enforced disappearance was placed in the preamble of the Declaration, the definition has been incorporated into the main part of the Declaration168 and it can be considered of customary value.169

167 G. Citroni and T. Scovazzi, ‘The Recent Developments in International Law to Combat Enforced Disappearances’, 3 Revista Internacional de Direito e Cidadania (2009) 89-111, at 93.168 I. Pervou, ‘The Convention for the Protection of All Persons from Enforced Disappearance : Moving Human Rights Protection Ahead’, 5 European Journal of Legal Studies (2012) 145-171, at 156.169 T. Scovazzi and G. Citroni, ‘The Recent Developments in International Law’, 3 Revista Internacional de Direito e Cidadania (2009) 89-111, at 92-93.

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Even though the definition in the Declaration reflected the historical and political complexity of the concept, there were, nevertheless, unresolved issues in the fight against this heinous crime. It was expressed in the report by the Individual Expert,170 that gaps existed regarding the definition of the term and that a legally binding instrument was necessary to punish the perpetrators and to prevent this phenomenon. As a response to the recommendations in his report, with the adoption of the Convention, important gaps were filled by creating a legally binding definition of enforced disappearance and recognizing the right not to be subjected to enforced disappearance under articles 1 and 2. The definition given effect in the Convention reflects the definition in the preamble of the Declaration with slight alterations.

Since there are various forms of enforced disappearances practiced by the governments, with different motives and methods, it was important that the definition covered all existing forms of enforced disappearance to be able to protect the majority of potential victims. The definition reached by the Convention not only aims to protect potential victims from already established forms of enforced disappearance, but also to prevent the emergence of new forms of practices of enforced disappearance.

2. Elements of Enforced Disappearance

Article 2 of the International Convention reads:

For the purposes of this Convention, "enforced disappearance" is considered to be 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 most widely accepted approach is that the definition of enforced disappearance consists of three elements. The first element of these is that there must be some form of deprivation of liberty. In article 2 of the Convention, three forms of deprivation of liberty, which constitute “essential components”171 of disappearance are listed to provide examples for the potential forms of deprivation of liberty, without exhausting the possibility of other forms. The unlawfulness of the deprivation of liberty is considered to be irrelevant in determining a case of enforced disappearance, as it is possible for a lawful deprivation of liberty to take the form of an enforced disappearance by meeting the third element.

The second element of an enforced disappearance is concerning the status of perpetrators and requiring them to be “agents of the State or persons or groups of persons acting with the authorization, support or acquiescence of the State”. Although it has caused disagreement during negotiations, it is established with clear terms that article 2 does not apply to non-state actors. For the acts committed

170 UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002.171 T. Scovazzi and G. Citroni, ‘The Recent Developments in International Law’, 3 Revista Internacional de Direito e Cidadania (2009) 89-111, at 93.

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by non-state actors, indirect state responsibility172 does not apply either since, in enforced disappearance cases it is hard to establish indirect state involvement. Article 3 is a special provision in relation to non-state actors, which creates the obligation for the State party to investigate the acts committed by “persons or groups of persons acting without the authorization, support or acquiescence of the State.”

The third element of enforced disappearance is the refusal to acknowledge the deprivation of liberty or the concealment of the fate or whereabouts of the disappeared person. Therefore, taking into consideration the composite character of the crime, enforced disappearance starts not when a person is deprived of his or her liberty but the moment the acknowledgment of deprivation of liberty is refused or the fate or whereabouts of the person is concealed. However, this requirement of double commission/omission does not imply a temporal element or a “predetermined duration” for the establishment of enforced disappearance. The obligation to disclose the whereabouts of the person arises almost immediately for the State and does not permit denial of information for long period of time. Thus, it is not possible to deny the existence of an enforced disappearance on the argument that “certain amount of time” has to pass since the disappearance took place. It has been argued that, in determining an enforced disappearance or distinguishing it from other offences, a temporal element is necessary not to “trivialize” the specific notion pertaining to the phenomenon.173 However, in practice the initial time period from the time disappearance takes place is the most critical period for the prevention of irrevocable consequences of an enforced disappearance which, taking into consideration the objectives of the Convention as a whole, invalidates the existence of a temporal forth element in the definition of the offence.

In relation to the third element of enforced disappearance, article 18 of the Convention guarantees access to information to any person with a legitimate interest. The article itemizes the minimum information that has to be provided. As a limitation to the right to receive information, article 20 specifies exceptional circumstances which this guarantee can be limited for the purposes of witness protection, national security or the safety of individuals or in the light of any other legally justifies consideration. However, this provision should be interpreted narrowly and in case of conflict, article 2 should prevail pursuant to the first paragraph of article 20. That is to say, if information is denied to any person with a legitimate interest, for reasons that go beyond the strict application of article 20 and in contradiction with the objectives of the Convention, the third element of article 2 should be regarded to be existent. However, it is important to distinguish that right to be informed of progress in and the findings of an investigation is not the same thing as the right to access to the case files. Nevertheless, right to be informed of progress in and the findings of an investigation is crucial and any interpretation on restricting the right should not leave room for abuses or compromise the efficiency of the early warning machinery. Finally, the right of the relatives, or other persons with a legitimate interest, their representatives or their legal counsel, to obtain information on a person who is deprived of his or her liberty, together with the non-derogable right of habeas corpus, are central tools to prevent the occurrence of enforced disappearance and must be distinguished from the right to the truth.

172 See, International Law Commission, Articles on the Responsibility of States for Internationaly Wrongful Acts (ARSIWA), Yearbook of the International Law Commission, 2001, vol. II (Part Two). Annex to the General Assembly resolution, A/56/49(Vol. I)/Corr.4.173 See, Human Rights Committee, Case of Tahar Mohamed Aboufaied v. Libya, Communication No. 1782/2008, CCPR/C/104/D/1782/2008, Individual (concurring) Opinion of the Committee member Sir Nigel Rodley, 19 June 2012.

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According to the last part of article 2 of the Convention, enforced disappearance places the person outside the protection of the law. This part of the article has caused a debate on whether “placing the person outside the protection of the law” should be considered as a fourth element of enforced disappearance. In other words, it was argued that for an act to be considered as an enforced disappearance there must be an “intention” of putting the person outside the protection of the law. Accepting the last part of the article as a fourth element would be contrary to the purpose of the Convention in protecting the victims of enforced disappearance, as it would create an additional requirement to prove the “intention” of the perpetrator. Not only this requirement entails high burden of proof for the victims, but also in majority of cases victims are not in the position to access the evidence to prove such intention by the agents of the State, which would lead to the impossibility for them to claim that an enforced disappearance has occurred and thus would limit the application of the Convention severely. A better perspective is that, in every situation where the disappearance of a person meets the three elements in the provision, the person is, as an inherent consequence, placed outside the protection of the law. Enforced disappearance places the person in total defenselessness by taking away the capacity to seek for protection and to demand rights and freedoms, thus disregarding the right to recognition as a person. The impossibility for the disappeared person to demand such recognition is an automatic disregard of rights and freedoms the person is entitled to under the law, placing the person outside any legal protection.

3. Comparison of the Definition in the Convention with Definitions in the Inter-American Convention and the Rome Statute

Article 2 of the Inter-American Convention on Forced Disappearance of Persons considers enforced disappearance to be:

[…] the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.

Since the Convention closely follows the definition in the Declaration and the Inter-American Convention, constitutive elements of the crime do not differ significantly except for the last part of the definition. Inter-American Convention, acknowledges that recourse to the applicable legal remedies and procedural guarantees would be impeded as a consequence of other constitutive elements of the crime, and does not formulate the last part of the definition as an additional element of intention. It is also important to note that, not having recourse to the legal remedies and procedural guarantees has a narrower scope than being placed outside the protection of the law as in the Convention. However, although not in the definition, in its case law Inter-American court added a temporal element to the definition, “the prolonged isolation and the coactive lack of communication to which the victims are subjugated represent, by themselves, forms of cruel and inhuman treatment”.174 Considering every act of enforced disappearance is a form

174 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 156; IACHR, Case Godinez Cruz v. Honduras, judgment of 20 January 1989, Ser. C No. 5 (Merits), § 164; IACHR, Case Fairen Garbi and Solis Corrales v. Honduras, judgment of 15 March 1989, Ser.

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of torture to the relatives,175 requiring isolation to be prolonged becomes equivalent to saying enforced disappearance has a temporal element. While the first time the Court identified a temporal element there was not a legal definition of the crime under international law, but during the more recent Bamaca Velasquez v. Guatemala case the Court must have followed the current understanding on the non-existence of a temporal element for enforced disappearance.

Preambles of both the Declaration on the Protection of All Persons from Enforced Disappearance and the Inter-American Convention on Forced Disappearance of Persons affirm that systematic practice of enforced disappearance constitutes a crime against humanity.176 The Rome Statute accordingly reflects the definitions of enforced disappearance in the Declaration and the Inter-American Convention and reads as:

Enforced disappearance of persons’ means 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 of time.177

The International Convention, being the most recent instrument also refers to the Rome Statute in its preamble and defines enforced disappearance as a crime against humanity if it is part of a widespread or systematic attack under article 5. Both Conventions and the Rome Statute regulate different types of responsibility, which is why the common constitutive elements as well as distinguishing features of all definitions must be identified.

According to article 30 of the Rome Statute, in order for a person to be criminally responsible and liable for a punishment for a crime defined under the Rome Statute, the material elements of the crime must have been committed with both intent and knowledge (mens rea or “guilty mind” requirement under the Rome Statute). To have knowledge means to be aware that a circumstance exists or a consequence will occur in the ordinary course of events.178 For crimes against humanity, the contextual element is that the acts must be part of a widespread or systematic attack against a civilian population and the mens rea requirement is that the perpetrator must have knowledge of the contextual element.179 Apart from the contextual element, the other objective elements is that any act that is part of a

C No. 6 (Merits), § 149; IACHR, Case Bamaca Velasquez v. Guatemala, judgment of 25 November 2000, Ser. C No. 70 (Merits), § 150.175 HRC, Celis Laureano v. Peru, Communication No. 540/1993, 25 March 1996, § 8.5, HRC, Katombe L. Tshishimbi v. Zaire, Communication No. 542/1993, 26 March 1996, § 5.5; HRC, Mojica v. Dominican Republic, Communication No. 449/1991, 10 August 1994, § 5.7; HRC, El-Megreisi v. Libyan Arab Jamahiriya, Communication No. 440/1990, 23 March 1994, § 5.4.176 UN General Assembly Resolution A/RES/47/133, Declaration on the Protection of All Persons from Enforced Disappearance, 18 December 1992, Preamble, § 4: “[…] Considering that enforced disappearance undermines the deepest values of any society committed to respect for the rule of law, human rights and fundamental freedoms, and that the systematic practice of such acts is of the nature of a crime against humanity; […]”; paragraph 6 of the Preamble of the Inter-American Convention on Forced Disappearance of Persons: “[…] REAFFIRMING that the systematic practice of the forced disappearance of persons constitutes a crime against humanity;[…]”.177 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 7(2)(i).178 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 30(3).

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widespread or systematic attack should fall under the specific offences prescribed under article 7(1), such as murder, persecution, enforced disappearance etc. To determine individual liability for each of these offences, the perpetrator must have the mens rea proper to each offence. In relation to the conduct, the perpetrator must mean to ‘engage’ in the conduct; and in relation to the consequence of a conduct, s/he must mean the consequences or must be aware that it will occur in the ordinary course of events.180

Firstly, pursuant to the definition in the Rome Statute, the offence must be committed by or with the authorization, support or acquiescence of the State or a political organization. In neither of the other instruments “political organizations” can be held liable for enforced disappearance but with the definition in the Rome Statute, non-state actors can be found responsible and held liable at the ICC.181 Secondly, the actus reus of enforced disappearance is (a) the arrest, detention or abduction of one or more persons or (b) refusal to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons. When these acts are committed, according to the Elements of Crimes182 the perpetrator must have the awareness that (a) Such arrest, detention or abduction would be followed in the ordinary course of events by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; or (b) Such refusal was preceded or accompanied by that deprivation of freedom. Unlike the definition in the Declaration, International Convention and the Inter-American Convention, deprivation of liberty does not have to be followed with the refusal to acknowledge or concealment of information. Article 7(2)(i) and the Elements of Crimes, formulates constitutive acts and “intention” in a special way taking into consideration that there are different stages of making a person disappear, and its never conducted by a single person from the beginning until the end.183 Thus with the formulation in the Rome Statute and Elements of Crimes, individuals who have taken part in only in some of the different stages of the disappearance can be held liable if they have the proper intention as prescribed.184

In addition to the general intention (dolus general) in terms of awareness on the deprivation of liberty and the refusal to acknowledge or not providing information on the fate or whereabouts of the person, a special intention (dolus specialis) is required for a person to be criminally liable of enforced disappearance as a crime against humanity under the Rome Statute. According to the last part of the

179 UN General Assembly, Elements of Crimes, International Criminal Court, U.N. Doc.PCNICC/2000/1/Add.2, (2000), article 7(1)(i)(8).180 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 30(2).181 D. Robinson, ’Crimes Against Humanity’, in R. Cryer, H. Friman, D. Robinson, E. Wilmshurst (eds.), An Introduction to International Criminal Law and Procedure (Cambrdige: Cambridge University Press, 2010) 230- 266, at 263.182 Elements of Crimes is a primary source of law of the International Criminal Court pursuant to the UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, article 21: “1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence […]”.183 UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002, § 74: “Often many perpetrators are involved in the abduction and not everybody knows what the final fate of the victim will be”.184 D. Robinson, ’Crimes Against Humanity’, in R. Cryer, H. Friman, D. Robinson, E. Wilmshurst (eds.), An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2010) 230- 266, at 263.

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definition under article 7(2)(i), acts must be committed “with the intention of removing them [the disappeared person] from the protection of the law for a prolonged period of time”. The non-ambiguous wording in the Rome Statute’s definition leaves no rooms for interpretation on the requirement of a special intention for criminal liability. Although, when the perpetrators have the general intention required, it is a natural consequence that a person is outside the protection of the law.185 However, to distinguish minor ‘administrative carelessness’186 from the “intention” to leave a person in a legal loophole,187 it is significant to prove the existence of special intention of the perpetrator in the context of crimes against humanity. Finally, it is not clear what the “prolonged period of time” means and whether this indicates a temporal element of the definition under the Rome Statute.188

In conclusion, elements of the crime under human rights instruments and the Rome Statute differ due to the different nature of responsibility they are creating, although sharing three common constitutive elements. The final part of the definition of enforced disappearance is formulated in a different way in all of the above mentioned instruments, which affects the scope of the crime of enforced disappearance and consequently, the scope of protection courts can potentially provide to the victims of enforced disappearance at the national level if the State has adopted one of the said definitions in their criminal legislation. Thus the meaning of “to be placed outside the protection of the law” and its nature either as a constitutive element or as a consequence has to be analyzed to understand the scope of the crime.

B. ‘Placing the person outside the protection of the law’

1. The meaning: Recognition as a person (right to juridical personality) /recourse to remedies (right to judicial protection)?

In four definitions of enforced disappearance provided by international law instruments,189 the last part of the definition of all, except one, reads as, “to place a

185 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, General Comment on the Definition of Enforced Disappearance, A/HRC/7/2, 10 January 2008, § 5: “In accordance with article 1.2 of the Declaration, any act of enforced disappearance has the consequence of placing the persons subjected thereto outside the protection of the law”.186 G. Werle, F. Jessberger, ‘Crimes against Humanity’, in G. Werle, F. Jessberger (eds.), Principles of International Law (New York: Oxford University Press, 2014) 327-390, at 382.187 For different interpretations on the meaning of this part, see Chapter 3.B.1.188 See also, UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002, § 71: “The practice of enforced disappearance qualifies as a crime against humanity if: (a) It is committed as part of a widespread or systematic attack directed against any civilian population; (b) The perpetrator knew that the conduct was part of a widespread or systematic attack directed against a civilian population; (c) The perpetrator was aware that the deprivation of liberty would be followed by a refusal to acknowledge it or to give information on the fate or whereabouts of the person concerned; (d) The perpetrator intended to remove such person from the protection of the law for a prolonged period of time. The crime against humanity of enforced disappearance can also be committed by persons acting in the context of a political organization, i.e. by non-State actors not acting in isolation”.189 UN General Assembly Resolution A/RES/47/133, Declaration on the Protection of All Persons from Enforced Disappearance, 18 December 1992, preamble; OAS, Inter-American Convention on Forced Disappearance of Persons, 33 I.L.M. 1429 (6 September 1994), entered into force 28 March 1996, article II; The Rome Statute of International Criminal Court, A/CONF.183/9, entered into force on 1 July 2002, International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, entry into force 23 December 2010, article 2.

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person outside the protection of the law”. Inter-American Convention on the other hand reads as, “impeding his or her recourse to the applicable legal remedies and procedural guarantees”. “Protection of the law” can mean “recognition as a person”(judicial personality) or it might be referring to right to effective remedy (right to judicial protection) as in the Inter-American Convention. The meaning of right to recourse to legal remedies and the right to recognition as a person under international law, and their meaning in the context of enforced disappearance will be analyzed to understand what the intended meaning of “protection of the law” under the definition in the International Convention on Enforced Disappearance is.

(a) Recourse to legal remedies and procedural guarantees

Right to a remedy for victims of violations of international human rights law is recognized under numerous international instruments, in particular article 8 of the Universal Declaration of Human Rights, article 2 of the International Covenant on Civil and Political Rights and articles 68 and 75 of the Rome Statute of the International Criminal Court.190 The right is also found in regional human rights Conventions in particular article 7 of the African Charter on Human and Peoples’ Rights191, article 25 of the American Convention on Human Rights, and article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms.192

The Commission on Human Rights adopted “the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law” in its resolution 2005/35 on 19 April 2005.193 According to the Basic Principles and Guidelines, victims of gross human rights violations should be treated with humanity and dignity, and their human rights must be respected while their well being is ensured, as well as their families’.194 Right to an effective remedy entails; (a) Equal and effective access to justice; (b) Adequate, effective and prompt reparation for harm suffered; and (c) Access to relevant information concerning violations and reparation mechanisms.195 Generally, the term 'remedy'

190 See also, International Convention on the Elimination of All Forms of Racial Discrimination, Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965, entry into force 4 January 1969, article 6; International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 , entry into force 26 June 1987, article 14; International Convention on the Rights of the Child, Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990, article 39; and of international humanitarian law as found in Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907. Annex to the Convention: Regulations respecting the laws and customs of war on land - Section III : Military authority over the territory of the hostile state, article 3; Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, article 91.191 For a different view see, G. M. Musila, “The right to an effective remedy under the African Charter on Human and Peoples' Rights”, 6 African Human Rights Law Journal (2006) 441-464, at 442: While the African Charter does not contain a specific provision on the right to an effective remedy, a somewhat rudimentary jurisprudence and practice has emerged through ‘situational’ interpretation”.192 UN General Assembly, Resolution 60/147, 16 December 2005, Preamble.193 Also adopted by the UN Economic and Social Council in its resolution 2005/30 on 25 July 2005 which was followed by General Assembly’s adoption of the Basic Principles in its resolution 60/147 on 16 December 2005.194 UN Commission on Human Rights, Resolution 2005/35, 19 April 2005, § 10.195 UN Commission on Human Rights, Resolution 2005/35, 19 April 2005, § 11.

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(also used as 'redress') can be understood to refer to 'the range of measures that may be taken in response to an actual or threatened violation of human rights'. 196 An effective remedy can be a right of its own, and as a constituent element of another right; for example right to security and liberty, right to a fair trial. IACHR has recognized everyone’s right to a simple, prompt and effective recourse to competent judges or tribunals for protection against human rights violations,197 and further elaborated the meaning of “effective”, stating:

[t]hose remedies which prove illusory, due to the general situation of the country or even the particular circumstances of any given case, cannot be considered effective.198

Judicial protection in Latin American States consists of amparo, writ of habeas corpus, madado de seguranqa, judicial review and people’s action against unconstitutionality of laws, which are judicial devices and guarantees aiming to protect human rights specifically, 199 and which have “proven the efficacy in the prompt and sure protection of human liberty”.200 Taking into consideration the broad and specific judicial protection existing in Latin America, the last part of the definition of enforced disappearance under Inter-American Convention on Enforced Disappearance, “impeding his or her recourse to the applicable legal remedies and procedural guarantees”, should be understood to be referring to such specific mechanisms existing in majority of Latin American States. This is also confirmed in the IACHR jurisprudence. In Bamaca Velasquez v. Guatemala,201 the Commission alleged that the disappeared person’s “existence as a human being” was denied by the Guatemalan authorities. Referring to the definition in the Declaration of Human Rights (reflected by the International Convention of Human Rights), the Commission argued that his right to recognition as a person was denied.202 IACHR denied alleged violation of right to recognition of juridical personality under article 3 of the American Convention, since the Court recalled that the Inter-American Convention did not refer expressly to this right among the “elements that typify the complex crime of forced disappearance of persons”. 203 Instead, the Court regarded the issue to be a matter of judicial protection under article 25 on the Inter-American Convention on Human Rights, and due to the “lack of effectiveness of habeas corpus” found a violation of the “positive

196 G. M. Musila, “The right to an effective remedy under the African Charter on Human and Peoples' Rights”, 6 African Human Rights Law Journal (2006) 441-464, at 446. See also, D. Shelton, Remedies in International Human Rights Law, (New York: Oxford University Press, 2005) 1-21, at 4, cited in G.M. Musila.197 IACHR, Case Cantoral Benavides v. Peru, judgment of August 18, 2000. Series C No. 69, § 163;IACHR, Case Durand and Ugarte v. Peru, judgment of August 16, 2000. Series C No. 68, § 101;IACHR, Case Cesti Hurtado v. Peru. judgment of September 29, 1999. Series C No. 56, § 121;IACHR, Case Castillo Petruzzi et al. v. Peru, judgment of May 30, 1999. Series C No. 52, § 185.198 IACHR, Case Bamaca Velasquez v. Guatemala, judgment of 25 November 2000, Ser. C No. 70 (Merits), § 191. See also, Judicial Guarantees in States of Emergency (Articles 27(2), 25 and 8, American Convention on Human Rights). Advisory Opinion OC-9/87 of October 6, 1987, Series A No. 9, § 24.199 P.P. Camargo, “Right to Judicial Protection: Amparo and Other Latin American Remedies for the Protection of Human Rights”, 3 Lawyer of the Americas (1971) 191-230, at 191.200 P.P. Camargo, “Right to Judicial Protection: Amparo and Other Latin American Remedies for the Protection of Human Rights”, 3 Lawyer of the Americas (1971) 191-230, at 220.201 IACHR, Case Bamaca Velasquez v. Guatemala, judgment of 25 November 2000, Ser. C No. 70 (Merits).202 IACHR, Case Bamaca Velasquez v. Guatemala, judgment of 25 November 2000, Ser. C No. 70 (Merits), § 176.203 IACHR, Case Bamaca Velasquez v. Guatemala, judgment of 25 November 2000, Ser. C No. 70 (Merits), § 180, 181.

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obligation of guarantee” for persons under the State’s jurisdiction.204 The Court further established that:

[…]habeas corpus represents the ideal means of guaranteeing liberty, controlling respect for the life and integrity of a person, and preventing his disappearance or the indetermination of his place of detention, and also to protect the individual from torture or other to cruel, inhuman or degrading punishment or treatment.205

According to the jurisprudence of ECtHR, the Court found violation of article 13 in almost all cases which the Court established enforced disappearance to have been occurred.206 ECtHR determines effective remedy to be;

[…] a thorough and effective investigation, capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure.

Finally, during the negotiations for the draft International Convention, the United Kingdom interpreted “to be placed outside the law” to mean, when the deprivation of liberty or the detention of the person is not covered by the rules relating to deprivation of liberty or detention, or that those rules were not in accordance with applicable international law.207

(b) Right to recognition as a person in the context of enforced disappearance

Article 6 of the Universal Declaration of Human Rights and article 16 of the International Covenant on Civil and Political Rights provides that “everyone shall have the right to recognition everywhere as a person before the law”.208 Article 3 of Inter-American Convention on Human Rights recognizes right to judicial personality and reads, “every person has the right to recognition as a person before the law”. African Charter says, “every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status” in article 5, recognizing right to recognition to mean a combination of respect to dignity and recognition of legal status and “right to have rights”.209 In other words, infringement of right to recognition as a person has the consequence of being denied of all other rights.210

204 IACHR, Case Bamaca Velasquez v. Guatemala, judgment of 25 November 2000, Ser. C No. 70 (Merits), § 193, 194.205 IACHR, Case Bamaca Velasquez v. Guatemala, judgment of 25 November 2000, Ser. C No. 70 (Merits), § 192.206 T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Leiden: Martinus Nijhoff Publishers, 2007), at 220.207 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2006/57, 2 February 2006, § 92.208 For regional conventions, see also; American Declaration on the Rights and Duties of Man, article XVII; American Convention on Human Rights, article 3; African Charter on Human and Peoples' Rights, article 5; for other thematic human rights conventions see also; the International Convention on the Rights of Persons with Disabilities, article 12, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, article 24.209 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, General Comment on the Right to Recognition as a Person Before the Law in the Context of Enforced Disappearances, A/HRC/19/58/Rev.1, 2 March 2012, Preamble.210 S. Joseph, J. Schultz and M. Castan, ‘Civil and Political Rights’, in S. Joseph, J. Schultz and M. Castan , The International Covenant on Civil and Political Rights: Cases, Materials and Commentary

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In the first report of the Working Group on Enforced Or Involuntary Disappearances on 1980, before the Declaration or Inter-American or International Conventions, the WGEID already considered that enforced disappearance results in denial or infringement of multiple human rights of the disappeared and the family members, including civil and political rights and economic, social and cultural rights, one of which is the right to recognition as a person before the law.211

Later when the Declaration on Enforced Disappearance was adopted, it formed a basis for the WGEID’s decisions. Article 1 (2) of the Declaration reiterates that any act of enforced disappearance places the person who was subjected to the offence, outside the protection of the law and constitutes a violation of the right to recognition as a person before the law.212 More recently in its General Comment on 2012, the WGEID once again highlighted the strong link between one of the elements of the legal definition of enforced disappearance, namely to be placed outside the protection of the law and the right to recognition as a person before the law.213 According to WGEID, the infringement of the right consists of the disappeared person’s identity to be falsified or destroyed, his or her name not being kept in the list of detainees, nor in the record of deaths.214 The disappeared person’s and his or her next-of-kins’ social and economic rights are also violated as a result of being removed outside the protection of the law, when the person loses his domicile, and the relatives cannot claim rights until the person appears or they can obtain a death certificate, which goes for inheritance issues, too. Children suffer even more severely if their parents are disappeared, or if they are born to a disappeared mother, which follows by the abduction of the child, or falsification or destroying of the identity of the child. Since the mother is not recognized as a person, children are denied their true identity as well.215 It is clear from the observation of the WGEID in its General Comment that, enforced disappearance does not only prevent a person from legal remedies and procedural guarantees but result in consequences that are beyond that and are constituting violation of right to recognition as a person. WGEID stresses the broader impact of enforced disappearance, in which the person “is denied any right under the law, and is placed in a legal limbo, in a situation of total defenselessness”216. Enforced disappearance further “entail the denial of the disappeared person’s legal existence

(New York: Oxford University Press, 2000) 99-598, at 201.211 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/1435, 26 January 1981, § 184.212 See also, UN General Assembly Resolution A/RES/47/133, Declaration on the Protection of All Persons from Enforced Disappearance, 18 December 1992, Preamble: “[...] Having regard in particular to the relevant articles of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which protect the right to life, the right to liberty and security of the person, the right not to be subjected to torture and the right to recognition as a person before the law, […]”.213WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, General Comment on the Right to Recognition as a Person Before the Law in the Context of Enforced Disappearances, A/HRC/19/58/Rev.1, 2 March 2012, Preamble.214 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, General Comment on the Right to Recognition as a Person Before the Law in the Context of Enforced Disappearances, A/HRC/19/58/Rev.1, 2 March 2012, § 2.215 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, General Comment on the Right to Recognition as a Person Before the Law in the Context of Enforced Disappearances, A/HRC/19/58/Rev.1, 2 March 2012, § 3.216 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, General Comment on the Right to Recognition as a Person Before the Law in the Context of Enforced Disappearances, A/HRC/19/58/Rev.1, 2 March 2012, §1.

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and, as a consequence, prevent him or her from enjoying all other human rights and freedoms.”217

In two cases regarding enforced disappearance communicated to the Human Rights Committee, namely Zohra Madoui v. Algeria218 and in Messaouda Kimouche v. Algeria,219 while examining alleged violation of article 16, the Commtitee assessed “whether and under what circumstances a forced disappearance may amount to denying the victim recognition as a person before the law”. At first sight it seems as if the Committee finds violation of article 16 to be conditional and limited to some situations of enforced disappearance. However, when the Committee sets the criteria for when it considers the right to recognition as a person to be violated it becomes clear that any act of enforced disappearance is act of refusal to respect the right to recognition as a person. According to the Court:

[…] if the victim was in the hands of the State authorities when last seen and, at the same time, if the efforts of their relatives to obtain access to potentially effective remedies, including judicial remedies have been systematically impeded.220

The Committee basically, sets the elements of enforced disappearance as its criteria and indirectly states that it would consider existence of a violation of the right to recognition as a person under article 16 in every case of enforced disappearance.

In the case of Anzualdo Castro v. Peru IACHR adopted a novel approach221 regarding violation of juridical personality compared to its previous decisions. According to the Court, the distinguishing characteristic of enforced disappearance, in contrast to extra-legal executions, is the uncertainty on the life or death of the person, due to State’s refusal of acknowledgment of the custody and refusal to provide information.222 It is this uncertainty that “prevents, impedes or eliminates the possibility of the individual to be entitled to or effectively exercise his or her rights in general”.223 By not providing judicial conditions necessary to recognize the individual’s capacity to be entitled or to exercise rights, the State violates its duty to respect and protect right to recognition as a person everywhere as a person under article 3. In contrast to Bamaca Velasquez v. Guatemala, in which the Court ruled right to recognition of juridical personality not to be among the “elements that typify the complex crime of forced disappearance of persons”,224 in Anzualdo Castro v. Peru the Court seems to have taken into consideration the development of international law and adopted an approach that is consistent with the WGEID’s

217 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, General Comment on the Right to Recognition as a Person Before the Law in the Context of Enforced Disappearances, A/HRC/19/58/Rev.1, 2 March 2012, §2.218 HRC, Zohra Madoui v. Algeria, Communication No. 1495/2006, 28 October 2009, § 7.7 - 7.8.219 HRC, Messaouda Kimouche v. Algeria, Communication No. 1328/2004, 10 July 2007, § 7.8 - 7.9.220 HRC, Zohra Madoui v. Algeria, Communication No. 1495/2006, 28 October 2009, § 7.7; HRC, Messaouda Kimouche v. Algeria, Communication No. 1328/2004, 10 July 2007, § 7.8.221 Case Case of Anzualdo Castro v. Peru Judgment of September 22, 2009, Ser. C No. 202 (Preliminary Objection, Merits, Reparations and Costs), Concurring Opinion Of Judge Sergio García Ramírez, § 22.222 Case Case of Anzualdo Castro v. Peru Judgment of September 22, 2009, Ser. C No. 202 (Preliminary Objection, Merits, Reparations and Costs), § 91. 223 Case Case of Anzualdo Castro v. Peru Judgment of September 22, 2009, Ser. C No. 202 (Preliminary Objection, Merits, Reparations and Costs), § 101.224 IACHR, Case Bamaca Velasquez v. Guatemala, judgment of 25 November 2000, Ser. C No. 70 (Merits), § 180, 181.

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views, Human Rights Committee’s decisions225 and Prof. Manfred Nowak’s report on enforced disappearance226.

It should not go without mentioning the Concurring Opinion of Judge Sergio García Ramírez in the case of Anzualdo Castro v. Peru,227 in which he undertakes a more elaborate task of examining firstly, whether the violation of judicial personality is inherent in the nature of the disappearance, and secondly, whether disappearance impedes a person’s “capacity of entitlement” to rights and obligations which is an issue of law; or “the capacity to exercise” rights and obligations which is an issue of fact.228 According to the Judge, the right to juridical personality entails recognition of the capacity to be entitled to rights and obligations. Judge Garcia Ramirez identifies, in his opinion, an error in the Court’s reasoning on the violation of the right to juridical personality. While the Court also considers the judicial personality to entail the capacity to be entitled to rights and obligations, in its reasoning it takes into consideration reasons that prevent both the capacity to exercise and the capacity to be entitled to rights and obligations. Contrary to what the Court said, according to Judge Garcia Ramirez, capacity to exercise rights can be affected by age, mental health or other reasons and can be prevented through creating obstacles, disturbance or through arbitrary denial, which would not necessarily affect the entitlement to rights. The Judge finds it inconsistent that the Court lists various obstacles created by the State, denying the disappeared persons’ capacity to exercise rights, while also asserting that the person’s capacity to be entitled is also denied. According to the Judge, as long as the disappearance is not resulted in the death of the person, the entitlement cannot be denied,229 while the capacity to exercise rights and obligations would be denied de facto.230 He exemplifies his view by giving two examples; first, is that under Civil Law there are guarantees to ensure the disappeared person’s rights in case they return, such as for example declaration of absence or the presumption of death. Secondly, he gives the example of when a person is seriously injured by State, and loses consciousness to a level that the person cannot exercise rights. He argues just as it is possible for this person to have rights through someone acting on behalf of her/him, a disappeared person is in the same situation of not being able to exercise rights herself/himself, while not losing entitlement to said rights.

225 Case Case of Anzualdo Castro v. Peru Judgment of September 22, 2009, Ser. C No. 202 (Preliminary Objection, Merits, Reparations and Costs), § 97. See also, Human Rights Committee, case of Zohra Madoui v. Algeria, Communication No. 1495/2006, CCPR/C/94/D/1495/2006 (2008), October 28, 2009, paras. 7.7 and 7.8; case of Messaouda Kimouche V. Algeria, Communication No. 1328/2004, CCPR/C/90/D/1328/2004 (2007), July 10, 2007, paras. 7.8 and 7.9, cited in the Case of Anzualdo Castro v. Peru.226 IACHR, Case Anzualdo Castro v. Peru, judgment of 22 September 2009, Ser. C No. 202 (Preliminary Objection, Merits, Reparations and Costs), § 98. See, UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002.227 IACHR, Case Anzualdo Castro v. Peru, judgment of 22 September 2009, Ser. C No. 202 (Preliminary Objection, Merits, Reparations and Costs), Concurring Opinion Of Judge Sergio García Ramírez.228 IACHR, Case Anzualdo Castro v. Peru, judgment of 22 September 2009, Ser. C No. 202 (Preliminary Objection, Merits, Reparations and Costs), Concurring Opinion Of Judge Sergio García Ramírez, § 26.229 IACHR, Case Anzualdo Castro v. Peru, judgment of 22 September 2009, Ser. C No. 202 (Preliminary Objection, Merits, Reparations and Costs), Concurring Opinion Of Judge Sergio García Ramírez., § 31.230 IACHR, Case Anzualdo Castro v. Peru, judgment of 22 September 2009, Ser. C No. 202 (Preliminary Objection, Merits, Reparations and Costs), Concurring Opinion Of Judge Sergio García Ramírez., § 30.

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While the distinction between the capacity to entitlement and the capacity to exercise rights and obligations is a valid one, Judge Garcia Ramirez’s point of departure that, the Court has determined right to judicial personality to entail only one of these capacities, namely the capacity to be entitled to rights and obligations, is not correct. The Court includes the “possibility of demanding recognition” of both types of capacity under the right to recognition of juridical personality,231 which is consistent with the interpretation of other bodies, as illustrated above. Secondly, Civil Law guarantees such as presumption of death, declaration of absence etc are created to avoid violation of the rights of the disappeared person’s next-of-kin, due to impossibility of obtaining a certificate of death or exercising their own rights accordingly. The impossibility for the victims’ next-of-kin to obtain such documents indicating certainty of the disappeared person’s status under the law is because of the non-acknowledgment of the disappearance or concealment of information. It is thus, not a way of protecting the disappeared person’s “capacity of entitlement to rights and obligations”, but a solution to avoid further violation of the rights of the relatives who are affected by the disappearance themselves.232 Secondly, it is hard to agree that the situation of a person whose bodily integrity is violated and who have lost consciousness, is the same as a person who has by definition “disappeared”. Not only all empirical proof on the “existence” of the person is destroyed, but even the name of a disappeared person cannot be found in the list of detainees or record of death when a person is forced to disappear by the agents of State. What the relatives are given the possibility to do is, to seek redress after the State fails to comply with its duty to recognize the disappeared person’s capacity to be entitled to and to exercise rights. The complainants to the case thereof, for example, are not exercising rights of the disappeared, but their own rights as victims of disappearance themselves. Thus, although the distinction is relevant, in terms of consequences of enforced disappearance, it is both the capacity of entitlement to and the capacity to exercise rights that is denied by the State, which causes violation of right to recognition as a person/juridical personality. Thus the Court’s novel approach, which is in line with the Declaration on Enforced Disappearance, Rome Statute and International Convention on Enforced Disappearance and the interpretation of Human Rights Committee and the WGEID, should be accepted as a precedent. Although, the definition under the Inter-American Convention does not include to be placed outside the protection of the law to be an element of the definition, violation of right to recognition is accepted as an objective consequence of enforced disappearance according to the recent approach by IACHR.

In conclusion, the choice of using to be “placed outside the protection of the law” in the International Convention, is due to the severe consequences victims of enforced disappearance face. The consequence for the victims to fall into a legal vacuum by not only losing the means to demand protection, such as through recourse to remedy and guarantees, but also through losing personality before the law. The International Convention recognizes the obligation to protect the right to remedy of the victims, such as through requiring habeas corpus protection,233 or

231 IACHR, Case Anzualdo Castro v. Peru, judgment of 22 September 2009, Ser. C No. 202 (Preliminary Objection, Merits, Reparations and Costs), Concurring Opinion Of Judge Sergio García Ramírez, § 87, 101.232 See for example, IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 64 “[...] a civil proceeding specifically cited by the Government, such as a presumptive finding of death based on disappearance, the purpose of which is to allow heirs to dispose of the estate of the person presumed deceased or to allow the spouse to remarry, is not an adequate remedy for finding a person or for obtaining his liberty.”233 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, entry into force 23 December 2010, article 17.

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through the provision on the right to receive information under separate provisions.234 In the definition, on the other hand, the Convention aims to reflect a situation created by the offence that is an all-encompassing common cause of all violations due to enforced disappearance; in other words, a situation of being refused to have the right to have rights. Thus, being places outside the protection of the law is understood to be the denial to recognition as a person.

2. Is it an additional element of “special intention” or an objective consequence?

(a) Prior to the Convention

On 2001 then Commission on Human Rights, decided to establish an Inter-sessional open-ended Working Group to elaborate a draft for a legally binding instrument on the protection of all persons from enforced disappearance. The Commission also appointed Professor Manfred Nowak as an independent expert to examine the existing criminal and human rights framework for the protection of persons from enforced or involuntary disappearances and to report his findings to the Commission and to the first session of the Inter-sessional Working Group established.235 Upon the report of Professor Nowak establishing the existing legal framework and the gaps on the issue of enforced disappearance, between 2003 and 2006, States, NGOs, victims associations and experts contributed to the drafting process of the Convention and to the elaboration of the protection mechanism for victims of enforced disappearance.236 The Human Rights Council adopted the International Convention for the Protection of all Persons from Enforced Disappearance on June 2006.

Although the Inter-sessional Working Group took the definition in the Declaration as its reference point for the definition that will be adopted in the legally binding document, elements of the crime were discussed in detail throughout the negotiations. As explained earlier, in the earlier human rights instruments providing for a definition of enforced disappearance, namely the Declaration on Enforced Disappearance and the Inter-American Convention on Enforced Disappearance, placing the person outside the protection of the law is not an additional fourth element, but it is a consequence. However, during the negotiations States could not agree on the interpretation of the issue of whether to place a person outside the protection of the law is an additional fourth element or a consequence.

In his report,237 Professor Nowak examined the existing definitions of enforced disappearance and identified that “any act of enforced disappearance contains at least the following three constitutive elements: (a) Deprivation of liberty against

234 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, entry into force 23 December 2010, article 18.235 UN Commission on Human Rights, Resolution 2001/46 of 23 April 2001, § 11: “Requests the Chairperson of the fifty-seventh session of the Commission, […], to appoint an independent expert to examine the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance, […],with a view to identifying any gaps in order to ensure full protection from enforced or involuntary disappearance and to report to the Commission at its fifty-eighth session and to the working group established under paragraph 12 of the present resolution at its first session ; […]”.236 UN Commission on Human Rights, Resolution 2001/46 of 23 April 2001, § 12.237 UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002.

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the will of the person concerned; (b) Involvement of government officials, at least indirectly by acquiescence; (c) Refusal to acknowledge the detention and to disclose the fate and whereabouts of the person concerned”238 and further identified the elements of enforced disappearance as a crime against humanity.239 Looking at the definitions in the international human rights and criminal law instruments, Professor Nowak identified the intention to remove the person outside the protection of the law for a prolonged period of time to be a subjective element, which is “difficult to prove”.240 His observation in the report is that usually perpetrators have the intention to abduct the person without any trace, for the “purpose of interrogation, intimidation, torture or instant but secret assassination”.241 As a result of this observation he stated that, in order for a criminal law system to have an effective deterrence effect, the definition in the domestic criminal law must be broader than the one in the ICC Statute and thus, recommended that if the future Convention will require States to criminalize enforced disappearance, the definition should reflect this objective and adopt the broader and stronger definition of enforced disappearance, that is the one including the removal of a person outside the protection of the law not as an additional element but as a consequence.242

(b) Travaux Preparatoire

On the first meeting of the Inter-sessional Working Group, the issue of “subjective element” as a constituent element for the offence of enforced disappearance was brought to the agenda. It was said that culpability of a perpetrator of enforced disappearance arises only if they know or should have known that offence was about to be committed. For enforced disappearance constituting crimes against humanity, same subjective element was suggested to be to know that acts were part of a systematic or massive practice of enforced disappearance. However, some members took the view that for the sake of “effectiveness of criminal justice”, subjective element as such should not be included.243 The confusion seems to have

238 UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002, § 70.239 UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002, § 71: “The practice of enforced disappearance qualifies as a crime against humanity if: (a) It is committed as part of a widespread or systematic attack directed against any civilian population; (b) The perpetrator knew that the conduct was part of a widespread or systematic attack directed against a civilian population; (c) The perpetrator was aware that the deprivation of liberty would be followed by a refusal to acknowledge it or to give information on the fate or whereabouts of the person concerned; (d) The perpetrator intended to remove such person from the protection of the law for a prolonged period of time. The crime against humanity of enforced disappearance can also be committed by persons acting in the context of a political organization, i.e. by non-State actors not acting in isolation".240 UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002, § 74.241 UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002, § 74.242 UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002, § 74.243 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2003/71, 12 February 2003, § 40.

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risen due to the fact that while the Convention, as a human rights instrument, aimed to create a separate negative human rights of its own of “not to be subjected to enforced disappearance”, the definition provided was going to be a criminal definition of enforced disappearance for States to adopt in their national criminal law.244 Consequently, providing a criminal definition of enforced disappearance required a more extensive consideration on the “elements of the crime”. “Knowledge”, as well as “intention” are subjective elements required to punish perpetrators under all penal systems. Thus, knowledge and general intent is implicit to any definition of enforced disappearance, regardless of being included in the definition or not. Concerns on the “effectiveness of criminal justice” do not seem to be valid. The Convention establishes States’ responsibility to criminalize enforced disappearance. What indicates States’ compliance is the adoption of the definition of enforced disappearance at the national level and exercising effective jurisdiction. Thus the definition will only apply to establish individual liability of perpetrators at the national level and without “knowledge” individuals cannot be considered culpable.

In the following meeting, “removal from the protection of the law as intent or consequence” was on the agenda, and some delegations suggested to include an explicit additional element of “intent” in the definition, since every criminal law system requires the element of intent. However, it was pointed out by some delegations that an element of intent is implicit in the draft definition, and an “additional” element of intent is not necessary. Thus, general intention for the deprivation of liberty and concealment/acknowledgment of the deprivation of liberty was suggested, whereas it was also found sufficient to include a general clause to allow States to apply their own elements of intent.245

On the third meeting of the Inter-sessional Working-Group, one delegation argued that including the last part as an additional element of special intention would allow to distinguish between “enforced disappearances and situations in which the State legitimately refused for a certain period to divulge information on what had happened to an individual”.246 However, even though some information on the detained person can be concealed based on legitimate reasons, non-acknowledgement of the deprivation of liberty can never be “legitimate”, which eliminates the need to distinguish those situations from enforced disappearance. The discussion further progressed into the distinction between general intention (dol général) and special intention (dol spécial). Since, every domestic criminal system provides for general intention, it is not required to include it in the definition, such as intention to deprive a person of their liberty or the intention to conceal information or not to acknowledge the deprivation of liberty. To remove the person outside the protection of the law on the other hand was suggested to be seen as a consequence, taking into consideration that to demonstrate such intention

244 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2005/66, 10 March 2005, § 18: “Several delegations supported that text; some emphasized that it defined a violation of human rights rather than giving a definition under criminal law that States would be required to transpose unaltered into their domestic law”.

245 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2004/59, 23 February 2004, § 24 - 25.246 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2005/66, 10 March 2005, § 24.

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would “merely make proof more difficult”.247 This position was supported by Argentina on the last meeting of the Inter-sessional Working Group, on which they state: “any person subjected to enforced disappearance was placed ‘outside the protection of the law’ was inherent in such disappearance and resulted from the three elements making it up”,248 to which China, Egypt and the United Kingdom disagreed. A consensus could not be reached and as a result of the negotiation which led the Chairperson to decide on a compromise. Taking into consideration that other three elements would not be able to be combined unless there was intent, and found it unnecessary to include an “intent “ element. It was decided to leave the wording ambiguous and gave the States the possibility to submit an interpretative declaration upon ratification of the Convention.249 As of today, no State submitted such an interpretation.250

(c) After the adoption of the Convention

Upon the adoption of the Convention the interpretation Argentina and several other States suggested was further supplemented by the interpretation provided by the Association of the Families of the Disappeared on 2006:

We are convinced that this characteristic of the definition should be interpreted as a consequence of the other constitutive elements of the crime of enforced disappearance (the deprivation of liberty and the denial of information) and not as an additional element in the definition. There can be no hypothesis of enforced disappearance that does not ipso facto exclude a person from the protection of the law.251

On 2008, WGEID also provided for an interpretation of its own in a General Comment, supporting the interpretation that any act of enforced disappearance has the consequence of leaving the person outside the protection of the law and further asserted that they are admitting cases of enforced disappearance without requiring victims to “demonstrate, or even to presume, the intention of the perpetrator to place the victim outside the protection of the law”.252 Later, a group of experts conducted a Joint Study in relation to secret detention in the context of countering terrorism on 2010. The study is relevant to enforced disappearance since every

247 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2005/66, 10 March 2005, § 25.248 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2006/57, 2 February 2006, § 91.249 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2006/57, 2 February 2006, § 93.250 See the United Nations Treaty Collection for the most recent ratification status for the International Convention on Enforced Disappearances (last checked 30th March 2015), available at; https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-16&chapter=4&lang=en.251 Associations of Families of the Disappeared, Joint Statement on the Occasion of the Adoption of the International Convention for the Protection of All Persons from Enforced Disappearances (Press Release, 23 September 2005), in K. Anderson, “How Effective Is The International Convention For The Protection Of All Persons From Enforced Disappearance Likely To Be In Holding Individuals Criminally Responsible For Acts Of Enforced Disappearance?, 7 Melbourne Journal of International Law (2006) 245-277, at 272.252 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, General Comment on the Definition of Enforced Disappearance, A/HRC/7/2, 10 January 2008, § 5.

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instance of secret detention is a form of enforced disappearance253 and the International Convention on Enforced Disappearance prohibits secret detention under article 17 (1). In the said study, the be places outside the protection of the law is once again considered to be an objective consequence of other elements of the crime, and the requirement of special intent as a defining element is rejected, referring once again to the preamble of the Declaration on the Protection of All Persons from Enforced Disappearance.254

However, today, the monitoring body of the International Convention on Enforced Disappearance, Committee on Enforced Disappearances does not adopt the requirement for a person to be deliberately removed from the protection of the law as a fourth element. While the Committee on Enforced Disappearances does not treat the last part of the definition as a separate constitutive element, the “constructive ambiguity” that the Chairperson aimed to create did not contribute in a constructive interpretation by the States. The definition of enforced disappearance was already established under international law, and the ambiguity led to inconsistency at the national implementation of the definition of the offence,255 which is not only rendering the International Convention less effective, but is also a violation of States’ obligations under international human rights law and international criminal law as will be explained in the following chapters.256 Furthermore, regarding the objectives of the International Convention, the inconsistency at the national implementation is in contradiction with the obligation for States to criminalize this offence and exercise effective jurisdiction. Thus, taking into consideration that this is an offence, which consists of an element of State involvement, it is a more reasonable approach for the Committee to keep the scope of interpretation of the definition narrower, , should remind States parties the common objective of international human rights law and international criminal law for the prevention of enforced disappearance, advising them to adopt a victims-oriented approach257 in complying with their obligation under both bodies of international law.

253 UN Human Rights Council, Joint Study On Global Practices In Relation To Secret Detention In The Context Of Countering Terrorism Of The Special Rapporteur On The Promotion And Protection Of Human Rights And Fundamental Freedoms While Countering Terrorism, Martin Scheinin; The Special Rapporteur On Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment, Manfred Nowak; The Working Group On Arbitrary Detention Represented By Its Vice-Chair, Shaheen Sardar Ali; And The Working Group On Enforced Or Involuntary Disappearances Represented By Its Chair, Jeremy Sarkin, A/HRC/13/42, 19 February 2010, § 28.254 UN Human Rights Council, Joint Study On Global Practices In Relation To Secret Detention In The Context Of Countering Terrorism Of The Special Rapporteur On The Promotion And Protection Of Human Rights And Fundamental Freedoms While Countering Terrorism, Martin Scheinin; The Special Rapporteur On Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment, Manfred Nowak; The Working Group On Arbitrary Detention Represented By Its Vice-Chair, Shaheen Sardar Ali; And The Working Group On Enforced Or Involuntary Disappearances Represented By Its Chair, Jeremy Sarkin, A/HRC/13/42, 19 February 2010, § 28.255 See, Chapter 4 .256 See, Chapter 5.2.257 See, Chapter 5.1.

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4. Implementation of the definition of enforced disappearance by States

A. Obligation to codify enforced disappearance as a separate offence

In order for States parties to be in full compliance with their International Convention obligations, each State party should take the necessary measures to ensure that enforced disappearance is an offence under its criminal law,258 and take the necessary measures to hold perpetrators of enforced disappearance criminally responsible259 and to make sure enforced disappearance is a punishable crime taking into consideration its extremely serious nature.260 It is therefore, not sufficient to have a definition of other offences that are linked to enforced disappearance such as torture, unlawful detention, illegal deprivation of liberty,

258 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, entry into force 23 December 2010, article 4: “Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law”.259 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, entry into force 23 December 2010, article 6.1: “Each State Party shall take the necessary measures to hold criminally responsible at least Any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance; ( b ) A superior who: (i) Knew, or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control were committing or about to commit a crime of enforced disappearance; (ii) Exercised effective responsibility for and control over activities which were concerned with the crime of enforced disappearance; and (iii) Failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of an enforced disappearance or to submit the matter to the competent authorities for investigation and prosecution; […]”.260 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, entry into force 23 December 2010, article 7 1: “Each State Party shall make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness”.

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abduction or extrajudicial executions.261 Although, these offences can also be committed during the course of enforced disappearance, relying solely on the definition of these crimes will undermine the serious and distinct nature of enforced disappearance and particular type of cruelty that is incurred upon victims. Thus, States parties have the obligation to codify enforced disappearance as a separate and autonomous crime. 262

On 2010, the Working Group on Enforced or Involuntary Disappearances prepared a report on the best practices on enforced disappearances in domestic criminal legislation. Important points on the obligation to codify enforced disappearance as a separate crime can be reached at from this report as well as reliable information on the current status of implementation of the definition of enforced disappearance at the national level. Although the report is considering the best practices of States regarding the obligation under article 4 of the Declaration on Enforced Disappearance, it should be noted that article 4 of the International Convention is a reflection of article 4 of the Declaration. Thus, Working Group’s views on codification of enforced disappearance is relevant in relation to the obligation of States parties to the International Convention, too. However, certain points in this report cannot be regarded relevant to the Convention, firstly due to the legally binding nature of the Convention and secondly, due to the development of international law since the adoption of the Declaration up until the adoption of the International Convention. Nevertheless, the report provides the most updated study on the best practices of national implementation, with the highest level of contribution and cooperation by the States.

Firstly, the International Convention, being the international, legally binding and most recent document on enforced disappearance, reflects the most extensive protection mechanism for the victims of enforced disappearance under the international law. It further provides a definition that is capable of encompassing all different forms of enforced disappearance, including the modern forms of enforced disappearance and potential, future forms of enforced disappearance. In other words, “the threshold definition has been lowered so as to be inclusive of all enforced disappearances with no possible loop-holes”.263 States upon ratification of the Convention, agreed to fulfill obligations entailed under this progressive document, and to be bound to follow the definition of the offence under the Convention, with the intention to distinguish this serious offence from other offences. The obligation to criminalize enforced disappearance following the definition provided under the Convention is similar to the obligations rising under the Torture Convention,264 or the Genocide Convention.265 Although, the WGEID considers that States are not bound to strictly follow the definition of the offence as

261 CED, Concluding observations on the report submitted by Spain under article 29, paragraph 1, of the Convention, CED/C/ESP/CO/1, 12 Dec. 2013, § 10.262 CED, Concluding observations on the report submitted by Germany under article 29, paragraph 1, of the Convention, CED/C/DEU/CO/1, 10 April 2014, § 7.263 A guide to the International Convention for the Protection of All Persons from Enforced Disappearance, Publication of Aim for human rights in support of the campaign for ratification of the International Convention for the Protection of all Persons from Enforced Disappearances, Text: Gabriella Citroni, Dave Hardy and Patricio Rice, Editing: Henriëtte Emaar, Preface available at: http://www.apdh-argentina.org.ar/sites/default/files/u6/enforced-disappearence_0.pdf.264 International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984, entry into force 26 June 1987, article 2; see also, Committee against Torture, General Comment No.2, CAT/C/GC/2, 24 January 2008, § 11.265 International Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948, article V.

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in the Declaration, but to merely ensure that enforced disappearance defined clear enough to be distinguished from other offences that are linked to it,266 International Convention is not a soft law instrument, and therefore the obligation is stricter than the ones rising out of the Declaration.

Secondly, for States parties to the Convention, there is obligation to codify the offence, regardless of the fact that enforced disappearance takes place in the country or not. This is primarily because the International Convention aims to prevent future atrocities as well. Furthermore, modern forms of enforced disappearance, such as extraordinary rendition, involves more than one state, and takes place in the territory of multiple states, either in their prisons, or as transit routes or in their airspace, which makes applicable jurisdiction ambiguous. Yet, codifying enforced disappearance as a separate crime will serve as a preventive mechanism and will lead to reluctance to tolerate or to indirectly facilitate certain military methods that fall under the definition of the crime as modern forms of enforced disappearance. Thirdly, even though the International Convention does not specifically regulate universal jurisdiction on enforced disappearance, it recognizes broad jurisdiction on the crime and obliges states either to extradite, surrender or to exercise their own jurisdiction over the crime. The reason universal jurisdiction is not regulated under the International Convention is due to the fact that the issue was not developed fully under the international law while the International Convention was drafted.267 Yet again, prior to the adoption of the International Convention, Prof. Manfred Nowak has identified this issue to be a gap under the current framework on enforced disappearance in his preliminary study and recommended universal jurisdiction to apply to all cases of enforced disappearance,268 and similarly Mr. Pourgouridas, rapporteur on enforced disappearance for the Committee for Legal Affairs and Human Rights under the Council of Europe, advised principle of universal jurisdiction to be taken as a safeguard against impunity269 These concerns and recommendations are unfortunately not reflected in the International Convention. Leastwise, article 9 of the International Convention comes close to providing a similar safeguard by allowing states to exercise special type of jurisdiction over the crime of enforced disappearance. While article 9(1) entails territorial, nationality and passive-personality jurisdictions for States parties, article 9(2) states that States parties shall establish their competence to exercise jurisdiction when the alleged offender is anywhere under their jurisdiction, unless they extradite or surrender. Additionally, in article 9(3), the Convention accepts “any additional criminal jurisdiction exercised in accordance with national law”, which could -or ideally should- include universal jurisdiction over the crime of enforced disappearance. Since, States can exercise jurisdiction over enforced disappearance, every State party’s criminal legislation should be capable of effectively investigating and prosecuting perpetrators of enforced disappearance. While it is only States parties to the Convention which have the obligation to codify enforced disappearance following the definition in the International Convention, for the effective fight against

266 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28 December 2010, § 21.267 T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Leiden: Martinus Nijhoff Publishers, 2007), at 301.268UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002, § 82.269 Council of Europe, Parliamentary Assembly, Enforced Disappearances, Report to the Committee on Legal Affairs and Human Rights, Rapporteur Mr. Christos Pourgourides, Doc. 10679, 19 September 2005, § 40-41.

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impunity, it is desirable for other States to use the Convention as an example when making changes to their domestic criminal laws. WGEID indicates that the obligation to codify enforced disappearance as a separate offence “applies to all States regardless of whether acts of enforced disappearance actually take place or not”.270 Since the Convention is a legally binding instrument, it is only upon ratification that States undergo obligations under the Convention.

Rome Statute

Before the entering into force of the Rome Statute, offences that amount to crimes against humanity were not adopted as distinct crimes under national criminal laws, but were criminalized and prosecuted as ordinary crimes.271 However, criminalizing international crimes as ordinary crimes can violate a State’s “duty to enact with the manifestation of seriousness that is embedded in international crimes”.272 Regarding enforced disappearances, the rate of codifying enforced disappearance under the national criminal codes increased upon ratification of the Rome Statute.273 Even though there is not a strict obligation for States to codify crimes under the Rome Statute, according to the principle of complementarity, implementing the crimes in a way that will enable effective investigation and prosecution thereof, will be a good “opportunity to express a commitment to combating impunity for the most abhorrent international crimes”,274 and thus to escape ICC’s exercise of jurisdiction pursuant to article 17 of the Rome Statute. There are three ways a State party can comply with the obligation to amend the law rising out of principle of complementarity, namely through adopting the definitions of crimes as in the ICC Statute, secondly through adapting the definitions under the Rome Statute to their own legal system, and finally through implementing crimes as ordinary crimes but making sure that all the crimes under the Rome Statute fall under these laws.275

According to the WGEID report on best practices, States have criminalized enforced disappearance using different methods. Some States have criminalized enforced disappearance as two separate crimes; one as a crime against humanity and one without the context of a widespread or a systematic attack. Some States on the other hand include only a single offence in their criminal code, which is broad enough to include enforced disappearance when it is “committed as an isolated act or as part of a widespread or systematic attack against a civilian population”. 276

270 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28 December 2010, § 9.271 H. Friman, ‘National Prosecutions of International Crimes’, in R. Cryer, H. Friman, D. Robinson, E. Wilmshurst (eds.), An Introduction to International Criminal Law and Procedure (Cambrdige: Cambridge University Press, 2010) 64-84, at 73.272 H. Friman, ‘National Prosecutions of International Crimes’, in R. Cryer, H. Friman, D. Robinson, E. Wilmshurst (eds.), An Introduction to International Criminal Law and Procedure (Cambrdige: Cambridge University Press, 2010) 64-84, at 73.273 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28 December 2010, § 12.274 H. Friman, ‘National Prosecutions of International Crimes’, in R. Cryer, H. Friman, D. Robinson, E. Wilmshurst (eds.), An Introduction to International Criminal Law and Procedure (Cambrdige: Cambridge University Press, 2010) 64-84, at 75.275 H. Friman, ’National Prosecutions of International Crimes’, in R. Cryer, H. Friman, D. Robinson, E. Wilmshurst (eds.), An Introduction to International Criminal Law and Procedure (Cambrdige: Cambridge University Press, 2010) 64-84, at 75-76.276 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28

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Among these States that only include a single offence in their criminal code, there are some, which consider enforced disappearance as a crime against humanity without the requirement of being part of a widespread or a systematic attack.

Although it is significant that many States have criminalized enforced disappearance upon ratification of the Rome Statute and the International Convention on Enforced Disappearance, what is striking is the inconsistency of domestic implementation of enforced disappearance and the arbitrary categorization States tend to adopt.

The inconsistency in criminalizing enforced disappearance have the potential of leading to undesired consequences. First of all, most of the time disappearances do not occur as part of a widespread or systematic attack. Therefore, providing a single definition, requiring the contextual element to exist might leave majority of acts pertaining to enforced disappearance outside the scope of the national law, which will exclude the jurisdiction of the national courts and consequently lead to impunity.277 International human rights bodies can only establish violation of States’ human rights obligation, but individual liability of perpetrators cannot be established by an international body unless it amounts to one of the crimes under the jurisdiction of the ICC.

Secondly, if nevertheless, it is part of a widespread or a systematic attack, then, the offence might fall under the jurisdiction of the ICC if the national proceedings are ineffective. While it is not desirable for States to be imposed to ICC jurisdiction, impunity would be prevented for enforced disappearance amounting to crimes against humanity through the international mechanism,278 if the definition under the national law does not enable effective investigation and prosecution of perpetrators of a crime against humanity.

Thirdly, when states include a single offence under their criminal legislation broad enough to include isolated acts and crimes against humanity, without requiring the acts to be part of a widespread or systematic attack, the prosecution of individuals for crimes against humanity would not be in compliance with the principle of legality. A crime against humanity is committed only when a prohibited act is committed as part of an “attack” that is “widespread” or “systematic” directed against any civilian population, with a nexus between the acts and the attack.

International Criminal Court will not exercise jurisdiction, unless there is effective investigation and prosecution at the national level.279 This means that the national law should enable such investigation and prosecution. However, the Rome Statute is silent on the obligation to adopt the crimes under it into domestic laws. Therefore, the obligation to adopt the definition of enforced disappearance rises

December 2010, § 19.277 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28 December 2010, § 16.278 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28 December 2010, § 18: Even if it cannot lead to invoking the jurisdiction of the International Criminal Court, an isolated act of enforced disappearance nonetheless remains an international crime and a gross human rights violation, which determines the criminal responsibility of the perpetrators, as required by several international human rights treaties. It follows that States cannot limit the criminalization of enforced disappearances only to those instances which would amount to crimes against humanity in the sense of the ICC Statute, but should encompass in the definition of the offence any kind of such act.279 See, Chapter 5.2.

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from the International Convention. Needless to say, two instruments are different in nature. While ICC determines individual liability, Committee on Enforced Disappearances establish States’ compliance with their Convention obligations. However, the common issue at stake is the national implementation and national prosecution of the crime since both instruments share the common objective of preventing impunity and to protect and redress victims of enforced disappearance. States which are parties to the Rome Statute and the International Convention have a combined obligation which should complement each other, rather than override one another. Therefore, even though States have the freedom to chose their method of complying with their obligations under international law, considerations must be on not to infringe their human rights obligations with a priority on victims’ right to justice280, and secondly to make sure their laws and procedures are not rendering them prone to be subjected to ICC jurisdiction.281

Parallel to this view WGEID, acknowledging that the definition under article 2 of the International Convention is more adequate than the one in the Rome Statute, recommended national authorities to interpret the existing definition under their domestic legislation in accordance with article 2 of the International Convention.282 It is not only the contextual element of the definition under the Rome Statute but also the “special intention” requirement that deems the definition less adequate, and less protective for the victims, which is the focus of this thesis. Article 7 defines enforced disappearance in a more restrictive way by requiring the victims to demonstrate the intention of the perpetrator to place the disappeared person outside the protection of the law for a prolonged period of time. 283 On this regard WGEID pointed out that,

[…] since most cases of enforced disappearance occur in isolation and not necessarily as part of a systematic attack with the intention to remove the victims from the protection of the law for a prolonged period of time ... efforts have to be increased to include enforced disappearance in all domestic criminal codes with appropriate punishment, and to bring the perpetrators to justice before domestic courts under national as well as universal jurisdiction.284

Article 37 of the International Convention is an important provision in answering how to reconciliate both obligations under the International Convention and the Rome Statute. Article 37 reads:

Nothing in this Convention shall affect any provisions which are more conducive to the protection of all persons from enforced disappearance and which may be contained in: (a) The law of a State Party; (b) International law in force for that State.

280 See, Chapter 5.1.281 See, Chapter 5.2.282 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28 December 2010, § 15.283 P. Galella and C. Esposito, ‘Extraordinary Renditions in the Fight against Terrorism. Forced Disappearance?’, 16 Revista Internacional de Derechos Humanos (2012) 7-33, at 21, available at:http://www.surjournal.org/eng/conteudos/getArtigo16.php?artigo=16,artigo_01.htm.284 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28 December 2010, § 17.

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A contrario reading of the article purports that, unless States can demonstrate in the reports that are submitted to the Committee on Enforced Disappearance that its existing national laws are more conducive to the protection of enforced disappearance, 285 the definition under the Convention will prevail over other standards. Nevertheless, if the national law using the more restrictive definition under article 7 will be a violation of the Convention consistent to the meaning of article 37. Therefore, while choosing either to criminalize enforced disappearance separately as a crime of its own and a crime against humanity or adopting a single definition covering both, placement of the person outside the protection of the law should be regarded as a consequence of other constitutive elements, and not as a fourth element as in the Rome Statute.

There are numerous problems rising out of the competing standards regarding the definition of enforced disappearance under international law. Criminalizing enforced disappearance is an important tool to overcome impunity,286 which is also the most feasible enforcement mechanism of international legal instruments. As explained earlier, planning, ordering and implementing enforced disappearance, and the consequences of the offence are extremely complex and thus having different definitions under the national law, or attempting to prosecute enforced disappearance under other offences that are linked to it do not “mirror the complexity and the particularly serious nature of enforced disappearance”. 287 If enforced disappearance is not criminalized as a separate offence and defined adequate to its complexity, the sanctions will not reflect the gravity of the crime either, and the protection provided to the victims will be diminished.288

B. Implementation by States

1. Introduction

It is not an easy task to introduce a definition of enforced disappearance in the national criminal codes. In so much that, according to the Guide to the International Convention for the Protection of All Persons from Enforced Disappearance, published by “Aim for human rights in support of the campaign for ratification of the International Convention for the Protection of all Persons from Enforced Disappearances”, the codification of the definition of enforced disappearance weakened protection against the crime, rather than strengthening it.289 There are different manners States include the crime in their national criminal

285 S. McCrory, ‘The International Convention for the Protection of all Persons from Enforced Disappearance’, 7 Human Rights Law Review (2007) 545 – 566, at 560: “This means that there may be cases where a national legislator may claim that the Convention’s provisions do not need to be implemented because the existing national law or applicable international law gives a higher degree of protection. Ultimately this will need to be justified in any report submitted by the State Party to the Committee reflecting the measures that have been taken to give effect to the obligations under the Convention (Article 29), in response to which the Committee may make comments, observations or recommendations”.286 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28 December 2010, § 10.287 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28 December 2010, § 11.288 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28 December 2010, § 11.289 A guide to the International Convention for the Protection of All Persons from Enforced Disappearance, Publication of Aim for human rights in support of the campaign for ratification of the

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codes, with various categorizations, and different elements of the crime, with various levels of success in distinguishing the crime from other crimes and various levels of compliance with the definition under the International Convention. For the purpose of this thesis, implementation of States that have codified both the International Convention and the Rome Statute, will be analyzed, using the WGEID report on best practices.290

2. Codification of enforced disappearance

Among 46 States that have ratified the International Convention, 39 of them have also ratified the Rome Statute.291 According to the WGEID report on best practices forty five States292 which are States parties to the Rome Statute criminalized enforced disappearance as a crime against humanity, when it is committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, following the definition given of crimes against humanity and of enforced disappearance provided for in article 7 of the Rome Statute. Based on the available information in the WGEID report, twenty-two States which have ratified both the Rome Statute and the International Convention, have criminalized enforced disappearance as a crime against humanity only, when committed as part of a widespread or a systematic attack, in compliance with article 7 of the Rome

International Convention for the Protection of all Persons from Enforced Disappearances, Text: Gabriella Citroni, Dave Hardy and Patricio Rice, Editing: Henriëtte Emaar, p. 19, available at: http://www.apdh-argentina.org.ar/sites/default/files/u6/enforced-disappearence_0.pdf . 290WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28 December 2010.291 Albania, Argentina, Austria, Belgium, Bolivia (Plurinational State of), Bosnia and Herzegovina, Brazil, Burkina Faso, Cambodia, Chile, Colombia, Costa Rica, Ecuador, France, Gabon, Germany, Honduras, Japan, Lesotho, Lithuania, Mali, Malta, Mexico, Mongolia, Montenegro, Netherlands, Nigeria, Panama, Paraguay, Peru, Portugal, Samoa, Senegal, Serbia, Slovakia, Spain, Tunisia, Uruguay, Zambia.292 Argentina (art. 9 Law 26.200 of 5 January 2007); Australia (sect. 268.21 Criminal Code Act 1995 and Schedule 1 International Criminal Court Act 2002); Azerbaijan (art. 110 Criminal Code); Belgium (art. 136-ter Criminal Code); Bosnia and Herzegovina (art. 172 Criminal Code); Burkina Faso (art. 314 Criminal Code); Burundi (arts. 196-197 of the Criminal Code); Canada (sect. 4 and Schedule Crimes against Humanity and War Crimes Act 2000); Chile (Law 20.357 of 18 July 2009); Republic of the Congo (arts. 6.k and 8 Law No. 8 of 31 October 1998); Costa Rica (art. 379 Criminal Code); Croatia (art. 157-A Criminal Code); Cyprus (Sect. 4 Law No. 23(III)/2006 of 28 July 2006); Czech Republic (sect. 401 Criminal Code); Finland (Chapter 11 Criminal Code); France (art. 212.1 Criminal Code); Germany (sect. 7.1.7 German Code of Crimes against International Law); Indonesia (art. 9 Law No. 26 of 2000 establishing the ad hoc Human Rights Court); Iraq (art. 12 Law of the Supreme Iraqi Criminal Tribunal of 18 October 2005 – only for crimes committed from 17 July 1968 to 1 May 2003); Ireland (sects. 6 and 10 of the International Criminal Court Act 2006); Kenya (sect. 6 International Crimes Act 2008); Republic of Korea (art. 9 Act on the Punishment of the Crimes within the Jurisdiction of the International Criminal Court 2007); Lithuania (art. 100 Criminal Code); Macedonia (art. 403 Criminal Code); Mali (art. 29 Criminal Code); Malta (art. 54-C Criminal Code); Montenegro (art. 427 Criminal Code); the Netherlands (sect. 4 International Crimes Act 2003); New Zealand (sec. 10 International Crimes and International Criminal Court Act 2000); Norway (sect. 102 Criminal Code); Panama (art. 432 Criminal Code); Philippines (Republic Act n° 9851, An Act defining and Penalizing Crimes Against International Humanitarian Law, Genocide and Other Crimes against Humanity, organizing Jurisdiction, Designating Special Courts and For Related Purposes, 11 December 2009, Section 6); Portugal (art. 9 Law No. 31 of 22 July 2004); Romania (art. 175 Criminal Code); Rwanda (art. 6 Law on Genocide, Crimes against Humanity and Crimes of War 2003); Samoa (sect. 6 International Criminal Court Act 2007); Senegal (art. 431-2 Criminal Code); Serbia (art. 371 Criminal Code); Slovenia (art. 101 Criminal Code); South Africa (part 2 Implementation of the Rome Statute of the International Criminal Court Act 2002); Spain (art. 607-bis Criminal Code); Switzerland (arts. 264a Criminal Code and 109e Military Criminal Code); Timor-Leste (art. 124 Criminal Code); Trinidad and Tobago (sect. 6 International Criminal Court Act 2006); United Kingdom of Great Britain and Northern Ireland (sect. 50 International Criminal Court Act of 2001); and Uruguay (art. 18 Law 18.026 of 4 October 2006).

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Statute. WGEID, regarded the definition in the International Convention to be more adequate than the one in the Rome Statute and recommends national authorities to interpret the definitions provided in their national legislation in line with the former.293

WGEID, looking at codification of enforced disappearance as an autonomous crime identifies distinct methods of implementation by States, and gives a list of good examples which it finds to be in compliance with States obligations under the Declaration. Two States, Panama and Uruguay, have established two separate crimes under their criminal codes, punishing enforced disappearance as a crime against humanity in the context of article 7 of the Rome Statute, and also codified separately isolated acts of enforced disappearance when the acts are not part of a widespread or systematic attack. 294 There are six States that have ratified both the International Convention and the Rome Statute, which include a single offence that is broad enough to punish enforced disappearance when committed in an isolated manner or as part of a widespread or systematic attack against a civilian population.295 Peru among them, has chosen to qualify enforced disappearance as a crime against humanity, even if it is not committed in the context of a widespread or systematic attack.

Uruguay uses a peculiar method of implementation. Article 18 of its Criminal Code,296 makes every crime against humanity under article 7 of the Rome Statute, punishable by fifteen to thirty years of imprisonment. In addition to that, a broad definition of enforced disappearance provided in article 21,297 in which minimum three elements of the crime is included, while the provision is silent on placement of the person outside the protection of the law. It is unclear which definition of

293 WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28 December 2010, § 15; see also, WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, General Comment on the Definition of Enforced Disappearance, A/HRC/7/2, 10 January 2008, § 26.294 Panama (ratified both) (arts. 150 and 432 Criminal Code), Uruguay(ratified both) (arts. 18 and 21 Law No. 18.026 of 4 October 2006). In the case of Uruguay, enforced disappearance as an autonomous offence (not in the context of article 7 of the ICC Statute), is nevertheless qualified as a crime against humanity.) 295 Bolivia (art. 292-bis Criminal Code), Colombia (art. 165 Criminal Code), Mexico (art. 215-A Criminal Code), Paraguay (art. 236 Criminal Code), Peru (art. 320 Criminal Code), Uruguay (art. 21 Law 18.026 of 4 October 2006).296 Uruguay, Ley No.18.026, Cooperacion Con La Corte Penal Internacional En Materia de Lucha Contra El Genocidio, Los Crimenes de Guerra Y de Lesa Humanidad, se establecen normas, El Senado y la El Senado y la Camara de Representantes de la República Oriental del Uruguay, reunidos en Asamblea General, artículo 18:(Crimen internacional de lesa humanidad).- El que cometiera cualquiera de los crímenes de lesa humanidad previstos en el artículo 7 del Estatuto de Roma de la Corte Penal Internacional aprobado por Ley Nº 17.510, de 27 de junio de 2002, sera castigado con quince a treinta años de penitenciaría.297 Uruguay, Ley No.18.026, Cooperacion Con La Corte Penal Internacional En Materia de Lucha Contra El Genocidio, Los Crimenes de Guerra Y de Lesa Humanidad, se establecen normas, El Senado y la El Senado y la Camara de Representantes de la República Oriental del Uruguay, reunidos en Asamblea General, artículo 21. (Desaparicion forzada de personas). 21.1. El que de cualquier manera y por cualquier motivo, siendo agente del Estado o sin serlo contando con la autorizacion, apoyo o aquiescencia de uno o mas agentes del Estado, procediere a privar de libertad a una persona, seguido de la negativa a informar sobre la privacion de libertad o el paradero o la suerte de la persona privada de libertad; o que omita y se niegue a brindar informacion sobre el hecho de la privacion de libertad de una persona desaparecida, su paradero o suerte, sera castigado con dos a veinticinco años de penitenciaría. 21.2. El delito de desaparicion forzada sera considerado como delito permanente, mientras no se establezca el destino o paradero de la víctima. 21.3. El juez podra considerar como atenuantes del delito de desaparicion forzada de personas las siguientes circunstancias: a) Que la víctima sea puesta en libertad indemne en un plazo menor a diez días; b) que se informe o actúe para posibilitar o facilitar la aparicion con vida del desaparecido.

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http://www.parlamento.gub.uy/leyes/ley17510.htm

http://www.parlamento.gub.uy/htmlstat/pl/estatutos/esta17510.htm#art7


enforced disappearance would apply, if for example there is an isolated incident of enforced disappearance that may or may not be part of a widespread or a systematic plan and whether the definition under article 7 or the broader definition under article 21 of the Criminal Code will apply.

According to the WGEID report, Panama has two separate offences under its domestic law. However, neither of the offences is adequate to punish perpetrators of enforced disappearance. Under article 150 of its criminal code,298 offenders are limited to public servants who are abusing their authority, and the element of concealment of information is limited to when they refuse to provide information if they know the whereabouts. Situations of concealment of information when they should have known are not included as a punishable act. The specific consequence of placement of the person outside the protection of the law is not included either. All in all, enforced disappearance is not distinguished from other crimes that could be committed by public servants abusing their authority. The punishment entailed in the provision is three to five years of imprisonment and aggravating circumstances, which could include elements of enforced disappearance for example, are not specified either. Article 432 of the Panama criminal code 299 is a broad provision that applies to persons taking up arms to prevent the fulfillment of any statute, which can be interpreted to be a “plan” and can qualify certain acts to be crimes against humanity. However, the punishment of two to four years of punishment does not reflect the serious nature of enforced disappearance as a crime against humanity.

Among the States which have a single offence broad enough to punish two categories of enforced disappearance, Mexico defines enforced disappearances in article 215 bis A of its Federal Criminal Code,300 including three constitutive elements of the crime, without making a distinction of when acts are part of a widespread or systematic attack, and without including the consequence of enforced disappearance placing the person outside the protection of the law. Paraguay under article 235 of its criminal code, first approves the Inter-American Convention on the Forced Disappearance of Persons, and refers to other crimes under its criminal law and makes them punishable as enforced disappearance if they are committed with the purpose of terrorizing the population. By referring to the Inter-American Convention, it is likely that the definition in the Inter-American Convention will be applied. Nevertheless, defining enforced disappearance by comparing with other criminal acts is undermining the distinct and serious nature of enforced disappearance and is not in compliance with codifying it as an autonomous crime. Peru also codifies enforced disappearance as a single offence 298 Panama, Codigo Penal De La República De Panama, Adoptado por la Ley 14 de 2007, con las modificaciones y adiciones introducidas por la Ley 26 de 2008, La Asamblea Nacional, artículo 150: El servidor público que, con abuso de sus funciones o en infraccion de las formalidades legales, prive de cualquier forma a una persona o mas personas de su libertad corporal, o conociendo su paradero niegue proporcionar esta informacion cuando así se le requiere, sera sancionado con prision de tres a cinco años. Igual sancion se aplicara a los particulares que actúen con autorizacion o apoyo de los servidores públicos. Si la desaparicion forzosa es por mas de un año, la pena sera de diez a quince años de prision.299 Panama, Codigo Penal De La República De Panama, Adoptado por la Ley 14 de 2007, con las modificaciones y adiciones introducidas por la Ley 26 de 2008, La Asamblea Nacional, artículo 432: Quien, sin pretender el cambio violento del régimen constitucional, se alce en armas para impedir el cumplimiento de alguna norma legal o sentencia sera sancionado con prision de dos a cuatro años.300 Mexican Federal Criminal Code, Codigo Penal Federal, Nuevo Codigo Publicado en el Diario Oficial de la Federacion el 14 de Agosto de 1931, Última reforma publicada DOF 14 Julio 2014, Capitulo III bis, Desaparicion forzada de personas, artículo 215-A: Comete el delito de desaparicion forzada de personas, el servidor público que, independientemente de que haya participado en la detencion legal o ilegal de una o varias personas, propicie o mantenga dolosamente su ocultamiento bajo cualquier forma de detencion.

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under article 320 of its criminal code,301 but categorizes all acts of enforced disappearance to be a crime against humanity, regardless of the requirement of a widespread or a systematic attack.

There are two States, which provide for a single definition of enforced disappearance in their criminal code, which include the “placing of the person outside the protection of the law”, specifically as a consequence and not as an additional element. Article 165 of the Colombian criminal code302 and article 292 bis of the Bolivian criminal code303 include three constitutive elements of the crime and the consequence of placing the person outside the protection of the law. Both codes entail adequate punishment for the crime acknowledging its serious nature, setting an example on proper criminalization of enforced disappearance. Indeed, Columbia is an example of implementing the definition of enforced disappearance and principles enshrined in the Basic Guidelines avant le lettre. It was on 2000 that the definition of enforced disappearance was implemented to the Columbian Criminal Code, and more significantly, as part of Columbia’s transition process, on 2005 Law on Justice and Peace was passed, aiming to establish peace with armed groups without compromising setting accountability for the perpetrators of serious crimes. The law introduced various judicial reforms, measures of strengthening of civil and military institutions and thus, created a strict legal framework for transitional justice. As a result the number of kidnappings dropped from 1,257 in

301 Peru, Codigo Penal del 3 de abril de 1991 (Decreto Legislativo No. 635), artículo 320.- La pena sera:1.- Privativa de libertad no menor de quince años si el agente actúa en calidad de integrante de una organizacion que, para lograr sus fines, cualesquiera que sean, utiliza como medio el delito de terrorismo previsto en el artículo 319. La pena sera privativa de libertad no menor de veinte años cuando el agente pertenece a la organizacion en calidad de jefe, cabecilla o dirigente. 2.- Privativa de libertad no menor de dieciocho años, si como efecto del delito se producen lesiones en personas o daños en bienes públicos o privados. 3.- Privativa de libertad no menor de veinte años, si se hace participar a menores de edad en la comision del delito. 4.- Privativa de libertad no menor de veinte años, si el daño en los bienes públicos o privados impide, total o parcialmente, la prestacion de servicios esenciales para la poblacion. 5.- Privativa de libertad no menor de veinte años, cuando con fines terroristas se extorsiona o secuestra personas para obtener excarcelaciones de detenidos o cualquier otra ventaja indebida por parte de la autoridad o particulares, o cuando con idéntica finalidad se apodera ilícitamente de medio de transporte aéreo, acuatico o terrestre, sea nacional o extranjero, altera su itinerario, o si la extorsion o secuestro tiene como finalidad la obtencion de dinero, bienes o cualquier otra ventaja. 6.- Privativa de libertad no menor de veinte años, si como efecto de la comision de los hechos contenidos en el artículo 313 se producen lesiones graves o muerte, siempre que el agente haya podido prever estos resultados.302 Columbian Criminal Code, Diario Oficial. Año CXXXVI. N. 44097, 2 Julio 2000, “El Congreso de Colombia, Ley 599 de 2000 por la cual se expide el Codigo Penal, 24 Julio 2000”, artículo 165: Desaparicion forzada. El particular que perteneciendo a un grupo armado al margen de la ley someta a otra persona a privacion de su libertad cualquiera que sea la forma, seguida de su ocultamiento y de la negativa a reconocer dicha privacion o de dar informacion sobre su paradero, sustrayéndola del amparo de la ley, incurrira en prision de veinte (20) a treinta (30) años, multa de mil (1.000) a tres mil (3.000) salarios mínimos legales mensuales vigentes y en interdiccion de derechos y funciones públicas de diez (10) a veinte (20) años. A la misma pena quedara sometido, el servidor público, o el particular que actúe bajo la determinacion o la aquiescencia de aquél, y realice la conducta descrita en el inciso anterior. 303 Bolivian Criminal Code, Gaceta Oficial de Bolivia, Decreto Supremo N° 0667 Evo Morales Aymapresidente Constitucional Del Estado Plurinacional de Bolivia, articulo 292 bis (Desparacion Forzada de Personas)(Incorporado por el Artículo Único de la Ley N° 3326, de 18 de enero de 2006): El que con la autorizacion, el apoyo o la aquiescencia de algún organo del Estado, privare de libertad a una o mas personas y, deliberadamente oculte, niegue informacion sobre el reconocimiento de la privacion de libertad o sobre el paradero de la persona, impidiendo así el ejercicio de recurso y de garantías procesales, sera sancionado con pena de presidio, de cinco (5) a quince (15) años. Si como consecuencia del hecho resultaren graves daños físicos o psicologicos de la victima, la pena sera de quince (15) a veinte (20) años de presidio. Si el autor del hecho fuera funcionario público, el maximo de la pena, sera agravada en un tercio. Si a consecuencia del hecho, se produjere la muerte de la victima, se impondra la pena de treinta (30) años de presidio.

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2003 to 226 in 2007.304 Combined with the strong legislative protection for the victims, good-will to overcome internal threats peacefully and a national determination for a successful transitional period Columbia sets an example for other countries on “how to address the challenges posed by societies seeking reconciliation and, in particular, how to recognize the rights of victims to truth, justice and reparation”.305

WGEID, in its study on best practices makes an assessment of all these practices according to the Declaration on Enforced Disappearances and finds all these different preferences of codification to be in compliance with the Declaration. Contrary to WGEID’s conclusion that these practices are acceptable, the same conclusion cannot be reached for States which ratified both the International Convention and the Rome Statute which have obligations under the Convention to codify enforced disappearance as an autonomous crime under the International Convention, and the duty to investigate and prosecute cases of enforced disappearance effectively if they want to escape ICC jurisdiction. Any codification of enforced disappearance should reflect States obligations under both binding instruments, and reflect their commitment to fight against impunity of enforced disappearance.

304 J. Guerrero Orozco and M. Goetz, ‘Reparations for Victims in Colombia: Colombia’s Law on Justice and Peace’, in C. Ferstman, M. Goetz, A. Stephens (eds), Reparations for victims of genocide, war crimes and crimes against humanity (Leiden: Martinus Nijhoff Publishers, 2009) 435-458, at 458.305 J. Guerrero Orozco and M. Goetz, ‘Reparations for Victims in Colombia: Colombia’s Law on Justice and Peace’, in C. Ferstman, M. Goetz, A. Stephens (eds), Reparations for victims of genocide, war crimes and crimes against humanity (Leiden: Martinus Nijhoff Publishers, 2009) 435-458, at 458.

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5. Implications of Implementing the Standard set by the Rome Statute

A. Victims-oriented Perspective under International Law

1. Introduction

Why is there a huge gap between what international law aspires to achieve and the situation of victims of violations of human rights in reality? According to Cherif Bassiouni, “international law is not victim-oriented”306 and Theo Van Boven identifies, apart from economic and political obstacles, legal shortcomings to be a significant factor preventing victims to be redressed and remedied. These shortcomings include “inadequate laws, restrictions in the definition of the scope and the nature of violations, the application of statutory limitations, the operation of amnesty laws, impediments in getting access to justice and restrictive attitudes of courts”.307 Awareness on this gap urged international community to adopt victims-oriented perspectives into international law in the last decade.

2. UN Basic Principles and Guidelines

306 E. Kristjansdottir, ‘International mass claims processes and the ICC Trust Fund for Victims’, in C. Ferstman, M. Goetz, A. Stephens (eds), Reparations for victims of genocide, war crimes and crimes against humanity (Leiden: Martinus Nijhoff Publishers, 2009) 165- 195, at 167.307 T. van Boven, ‘Victim-Oriented Perspectives: Rights and Realities’, in T. Bonacker and C. Safferling (eds.), Victims of International Crimes: An Interdisciplinary Discourse (The Hague: T.M.C. Asser Press, 2003) 17-27, at 18.

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In order to affirm its solidarity with the victims of human rights violations and humanity as a whole, the international community adopted victims-oriented perspectives, to further “humanize” international law.308 On 2005, Human Rights Commission introduced the Updated Set of principles for the protection and promotion of human rights through action to combat impunity (Impunity Principles),309 and the UN General Assembly adopted the Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Reparations Principles).310

In order to ensure victims’ right to remedy and to secure the interest of victims and to remedy the effects of impunity in general, above principles include a three-fold set of rights for the victims, namely, right to justice, right to know the truth and right to reparation. While right to truth and right to reparation are rights of their own, right to justice, was a developing right as a right of its own at the time of the adoption of the principles and said principles contributed in it to be established as such.

Right to justice purports to effective and equal access to justice for the victims of violations of human rights. To ensure right to justice of victims, States have the obligation to take measures to minimize inconvenience to victims, to ensure the protection of their privacy and safety from intimidation and retaliation, to provide assistance to victims who seek access to justice and should make all legal, diplomatic and consular means available in order for victims to exercise their right to remedy and make international processes available and finally should ensure that those responsible for serious crimes under international law are prosecuted, tried and duly punished.311 Furthermore victims should enjoy special consideration and care to avoid re-traumatization in the course of legal and administrative procedures aiming to provide access to justice for the victims. Under the right to justice, States’ primary role in prompt, thorough, independent and impartial investigations of violations of human rights and humanitarian law violations is given utterance. Even though it is primarily States that should initiate investigations, States should guarantee broad legal standing in the judicial process to any wronged party with a legitimate interest, to enable victims and their relatives to institute proceedings. 312 Also significantly, Impunity Principles recall States’ duty to conduct effective investigations and prosecutions for serious crimes under international law and emphasize that States should enact domestic legislation that enables them to fulfill their obligations under international criminal law.313 Furthermore in relation to 308 T. van Boven, ‘Victim-Oriented Perspectives: Rights and Realities’, in T. Bonacker and C. Safferling (eds.), Victims of International Crimes: An Interdisciplinary Discourse (The Hague: T.M.C. Asser Press, 2003) 17-27, at 18.309 UN Commission on Human Rights (2005) Updated Set of principles for the protection and promotion of human rights through action to combat impunity, UN Doc. E/CN.4/2005/102/ Add.1, 8 February 2005.310 UN General Assembly, Resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by UN General Assembly Resolution 60/147, 16 December 2005.

311 UN Commission on Human Rights, Updated Set of principles for the protection and promotion of human rights through action to combat impunity, UN Doc. E/CN.4/2005/102/ Add.1, 8 February 2005, Principle 19.312 UN Commission on Human Rights, Updated Set of principles for the protection and promotion of human rights through action to combat impunity, UN Doc. E/CN.4/2005/102/ Add.1, 8 February 2005, Principle 19.313 UN Commission on Human Rights, Updated Set of principles for the protection and promotion of human rights through action to combat impunity, UN Doc. E/CN.4/2005/102/ Add.1, 8 February

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legislation at the national level, under the right to reparation, it is prescribed upon States to abolish and repeal “legislation and administrative regulations and institutions that contribute to or legitimize human rights violations”.314 Ensuring that national legislation provides at least the same level of protection for victims as required under the Stats’ international obligations is the minimum that has to be done in order to adopt a victims-oriented perspective in national implementation of international standards.315

UN General Assembly recommended that “States take the Basic Principles and Guidelines into account, promote respect thereof and bring them to the attention of members of the executive bodies of government, in particular law enforcement officials and military and security forces, legislative bodies, the judiciary, victims and their representatives, human rights defenders and lawyers, the media and the public in general”.316 Pursuant thereto, UN Basic Principles and Guidelines have influenced national legislation, domestic practices, as well as international jurisprudence and standard-setting mechanisms since their adoption.317

3. People’s Convention

International Convention for the Protection of All Persons from Enforced Disappearance which was adopted a year after the adoption of Impunity and Reparation Principles is the first treaty that is constituted in the light of these three rights; right to justice, right to know the truth and the right to reparation. 318 The Reparation and Impunity principles find a broad expression in this document and it reflects victims-oriented perspective on international human rights law. Furthermore, the International Convention is also referred to as “people’s convention”, since it was drafted with extensive contribution from the academia, human rights NGOS, experts, as well as relatives of the disappeared around the world.319 The mechanism International Convention creates fills the gap for the protection of victims of enforced disappearance, and therefore, has the potential of serving as an instrument that can guarantee that there will be no safe haven for perpetrators of enforced disappearance if it is fully implemented.320

In the preamble of the International Convention, victims’ right to justice and

2005, Principle 20.314 UN Commission on Human Rights, Updated Set of principles for the protection and promotion of human rights through action to combat impunity, UN Doc. E/CN.4/2005/102/ Add.1, 8 February 2005, Principle 38.315 UN General Assembly, Resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by UN General Assembly Resolution 60/147, 16 December 2005, Annex.316 UN General Assembly, Resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by UN General Assembly Resolution 60/147, 16 December 2005.317 T. van Boven, ‘Victims’ Rights to a Remedy and Reparation: The New United Nations Principles and Guidelines’, in C. Ferstman, M. Goetz, A. Stephens (eds), Reparations for victims of genocide, war crimes and crimes against humanity (Leiden: Martinus Nijhoff Publishers (2009) 19-40, at 31.318 T. van Boven, ‘Victim-Oriented Perspectives: Rights and Realities’, in T. Bonacker and C. Safferling (eds.), Victims of International Crimes: An Interdisciplinary Discourse (The Hague: T.M.C. Asser Press, 2003) 17-27, at 22.319 A guide to the International Convention for the Protection of All Persons from Enforced Disappearance, Publication of Aim for human rights in support of the campaign for ratification of the International Convention for the Protection of all Persons from Enforced Disappearances, Text: Gabriella Citroni, Dave Hardy and Patricio Rice, Editing: Henriëtte Emaar, Preface available at: http://www.apdh-argentina.org.ar/sites/default/files/u6/enforced-disappearence_0.pdf

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reparation is explicitly recognized, alongside the right not to be subjected to enforced disappearance. During the travaux preparatoire of the International Convention delegations were divided on whether to include victims’ right to justice in the Convention. Some participants considered that limitations on pardons, amnesties and other similar measures benefiting perpetrators of enforced disappearance, should not be limited to reparations only but should extend to victims’ right to justice, since, even before a perpetrator is convicted, they can benefit from similar measures as “suspected perpetrators”. Thus, right to justice would ensure limiting these measures even before.321 Some participants argued that right to reparation is implicit in the right to justice, in not only legal sense but also “from a philosophical and moral standpoint”.322Some delegations even expressed their intention to make an interpretative declaration upon ratification of the instrument that right to truth, justice and reparation would extend to enforced disappearances which had started before the entry into force of the International Convention but had not been clarified.323

Opposing to these views, some participants suggested to delete the reference to the “right to justice” in the preamble, which did not appear in other international human rights instruments. One delegation argued that even though the instrument aims to provide justice, it does not have to create a new right of its own.324 However, the Inter-sessional Working Group did not adopt this amendment and the view supporting to have an explicit reference to victims’ right to justice and reparation prevailed as a result. In the General Statements, Mexico, speaking on behalf of the Group of Latin American and Caribbean States (GRULAC) considered recognition of the right of victims to justice and reparation to be a major step forward in the fight against impunity and in the effort to prevent this crime.325

The International Convention reflects victims-oriented spirit and is successful at prescribing a strong protective mechanism for victims. However, implementation of the victims-oriented principles enshrined in the International Convention requires efforts by states when they are implementing the Convention at the national level. It is through national proceedings that the victims of enforced disappearance will be able to receive the most prompt and effective remedy for the violation of their rights. The first and foremost step to ensure preventing cases of enforced disappearance and to punish perpetrators, is to criminalize enforced disappearance and to implement the definition under the Convention, with an

320 A guide to the International Convention for the Protection of All Persons from Enforced Disappearance, Publication of Aim for human rights in support of the campaign for ratification of the International Convention for the Protection of all Persons from Enforced Disappearances, Text: Gabriella Citroni, Dave Hardy and Patricio Rice, Editing: Henriëtte Emaar, Preface available at: http://www.apdh-argentina.org.ar/sites/default/files/u6/enforced-disappearence_0.pdf321 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2004/59, 23 February 2004, § 73-74.322 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2005/66, 10 March 2005, § 16.323 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2006/57, 2 February 2006, § 66.324 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2006/57, 2 February 2006, § 88.325 UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2006/57, 2 February 2006, Annex II, General Statements.

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approach that is in line with providing victims their right to justice, reparation and truth. Although, the International Convention provides a strong, protective mechanism, in reality victims of enforced disappearance are encountering many obstacles at the national level that deprives them of access to justice. Mainly procedural obstacles create such burdens to the victims that it can amount to denial of access to justice. It is in the nature of the crime to “deny” the existence of a disappearance or to conceal information on the fate or whereabouts of the disappeared person. Therefore, the only possibility for victims to seek remedies and to receive justice is to have adequate legislation under the criminal codes which allows victims to make concrete allegations. Without recognizing the distinct and serious nature of enforced disappearance, through implementing a definition that is broad, protective and strong enough for victims of enforced disappearance to make allegations, firstly, taking urgent responses in the first few days of the disappearances will not be possible. To provide prompt response when there is suspicion of an enforced disappearance is the most important, crucial tool to prevent occurance of enforced disappearance. Once the trace of a person is lost, it is significantly more difficult to detect the whereabouts of the person. Secondly, after the disappearance, for relatives to bring cases to the courts and to seek for reparations, and also for effective prosecution and punishment of perpetrators, the criminal code should include a definition of the crime that spells out specific elements of the crime, taking into consideration the disadvantaged position of victims in obtaining evidence and reaching the burden of proof.

Needless to say, victims encounter obstacles that are beyond legal shortcomings regarding the definition of enforced disappearance in the criminal codes of their states. Relatives and legal counsels of the disappeared person most of the time get intimidated and threatened by authorities while seeking for justice, investigations get obstructed and requests for assistance are evaded by the police.326 However, these methods of denial of access to justice have a political nature and will have to be overcome by an institutional reform. On the other hand, national implementation of the definition of enforced disappearance is the first and the easiest step states can and should take. Looking at the practice, even this basic step is not taken adequately and the inconsistency of the definition of enforces disappearance under national criminal codes pertains.

4. Implications on the Human Rights Protection of the Victims of Enforced Disappearance at the National Proceedings

International courts and bodies have identified what type of procedural obstacles victims encounter during the national proceedings. Procedural requirements such as the standard of proof is more formal in domestic proceedings than in international legal proceedings. Different burdens of proof are used at the domestic proceedings “depending upon the nature, character and seriousness of the case”.327

International human rights bodies have in several decisions underlined the type of procedural obstacles victims have been facing, especially in terms of collecting evidence and reaching the burden of proof courts require. However, as international bodies, they are bound by the cooperation of states. If faced by non-cooperation they have the power to alter their procedural requirements, and use

326 T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Leiden: Martinus Nijhoff Publishers, 2007), at 133.327 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 126, 128, 131.

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different types of evidential standards. In Velasquez Rodriguez v. Honduras, the Commission argued that:

[…]the policy of disappearances supported or tolerated by the Government, is designed to conceal and destroy evidence of disappearances. When the existence of such a policy or practice has been shown, the disappearance of a particular individual may be proved through circumstantial or indirect evidence or by logical inference. Otherwise, it would be impossible to prove that an individual has been disappeared.328

States also commonly build a “wall of silence” with the aim of obstructing the fact-finding procedures of international courts. As a response to this persistence by states IACHR for example interpreted the silence of the accused, or elusive or ambiguous answers in several cases “as an acknowledgment of the truth of the allegations”.329

ECtHR, faced with various obstacles regarding cases of enforced disappearances, too. For instance, states created a “wall of silence”, ECtHR observed complete absence of evidence on the domestic level, witness statements could not be obtained due to high threat towards witnesses and the lack of witness protection measures available. ECtHR even faced active undermining of its proceedings through States not following their promises given through friendly settlements and unilateral declarations.330 As a response to these forms of non-cooperation, ECtHR developed procedural measures of such as lowering its evidential standard from “proof beyond reasonable doubt” to accepting circumstantial evidence and strong presumptions, shifted the burden of proof to states who do not cooperate in providing information, and even conducted its own factual analysis.331

Human Rights Committee, in Bousroual v. Algeria, Communication, also ruled that:

The burden of proof cannot rest alone on the author of the communication, especially considering that the author and the state party do not always have equal access to the evidence and that frequently the state party alone has access to the relevant information.332

The less stringent procedural requirements and flexibility adopted by the courts is due to the fact that firstly, as international bodies they are not always bound by domestic legal procedures. Secondly, although enforced disappearance is a crime of its own, international human rights bodies do not establish individual liability of perpetrators but rather they establish human rights violations by states. While criminal procedure is followed at the national level to establish liability of

328 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 124.329 IACHR, Case Godinez Cruz v. Honduras, judgment of 20 January 1989, Ser. C No. 5 (Merits) § 144; see also, T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Leiden: Martinus Nijhoff Publishers, 2007), at 137.330 H. Keller and C. Heri, ‘Enforced Disappearance and the European Court of Human Rights’, 12 Journal of International Criminal Justice (2014) 735-750.331 H. Keller and C. Heri, ‘Enforced Disappearance and the European Court of Human Rights’, 12 Journal of International Criminal Justice (2014) 735-750, at 742.332 HRC, Case Bousroual v. Algeria, Communication No. 992/2001, 24 April 2006, §9.4.

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individuals, international human rights courts follow civil procedure to establish State’s liability. 333 Despite not being bound by strict procedure, and the power to develop strategies to provide successful proceedings, even the international bodies for not successful in overcoming the resistance of states, and many cases have been obstructed through state non-cooperation. This can only explain the extend of resistance state authorities will show towards victims and their legal counsels seeking for justice at the national level, while they are complaining to the police, asking for investigations regarding their disappeared relatives, looking for information on the whereabouts or the fate of the disappeared person, or asking for access to documents, trying to collect substantial proof on the existence of elements of the crime.

At the national level, victims of enforced disappearance will go through criminal procedures, and the courts will establish individual criminal liability. One reason international courts and bodies observe that there is usually no factual evidence at the national proceedings pertaining to the cases of enforced disappearance334 is the legal shortcoming in criminalizing enforced disappearance. While, as argued during the meetings of the Inter-sessional Working group for the drafting of the International Convention, every legal system requires “intention” of the perpetrator of a crime in order to hold the person criminally liable. While this seems as a justification to accept the “special intention” requirement for enforced disappearance cases, looking at the practice of international courts, this is against the right to justice and reparation of the victims to require victims to prove such an element. As the ECtHR established for example, domestic proceedings usually fail to determine facts, and victims are most of the time have no access to the means of proof.335 It is the total defenselessness of the victims of enforced disappearance, vis-à-vis agents of the State who are by definition the perpetrators of the crime, that the legislators should take into consideration when adopting the definition of enforced disappearance. It is negating the possibility to access justice, to require defenseless victims to prove the intention of the perpetrators to put them in a defenseless situation. As the chairperson of the Inter-sessional Working Group expressed, “intention” is an element in every criminal system, which is inherent in any criminal provision. The general intention requirement will thus enable holding perpetrators criminally liable and culpable, while a requirement of proving special intention, can only be categorized as another strategy by persistent states to obstruct investigations and prosecutions of enforced disappearance cases and to limit the right to reparation of the victims.

While it is a violation of rights of the victims, there is a potential of further consequence of not respecting victims’ right to due process during the proceedings at the national level. The recent humanization of international law and wider

333 IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 173: Violations of the Convention cannot be founded upon rules that take psychological factors into account in establishing individual culpability. For the purposes of analysis, the intent or motivation of the agent who has violated the rights recognized by the Convention is irrelevant - the violation can be established even if the identity of the individual perpetrator is unknown. What is decisive is whether a violation of the rights recognized by the Convention has occurred with the support or the acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible. Thus, the Court's task is to determine whether the violation is the result of a State's failure to fulfill its duty to respect and guarantee those rights, as required by Article 1( 1 ) of the Convention.334 H. Keller and C. Heri, ‘Enforced Disappearance and the European Court of Human Rights’, 12 Journal of International Criminal Justice (2014) 735-750, at 739. See also, IACHR, Case Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No.4 (Merits), § 137.335 H. Keller and C. Heri, ‘Enforced Disappearance and the European Court of Human Rights’, 12 Journal of International Criminal Justice (2014) 735-750.

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recognition of victims’ rights are also strongly reflected in the Rome Statute, which for example enables victims to participate to the proceedings and are entitled to be afforded to reparations. 336 Since both instruments reflect a victims-oriented perspective and elaborate victims’ right to justice, competing obligations rising out of these two instruments should be reconciliated based on this additional mutual objective. Furthermore, states, which have ratified both the International Convention and the Rome Statute, are bound by the obligations under the principle of complementarity if they want to escape ICC’s jurisdiction. The competing standards set under human rights and criminal law create an overlapping obligation pursuant to the recent Al-Senussi decision, according to which violation of due process standards will lead to cases being admissible at the ICC. Therefore, preferential implementation of the definition of enforced disappearance by the states require further consideration, taking into consideration the potential outcome at the ICC level.

B. Implications under the Principle of Complementarity of the Rome Statute

1. Introduction

Mirroring the principle of complementarity which the ICC system is grounded upon, a case is admissible before the International Criminal Court (“the ICC”) when the State having jurisdiction over the crimes alleged is “unwilling” or “unable” to prosecute that case (Article 17 ICC Statute). If a state initiates an investigation or a prosecution but there are reasons to believe that the proceedings are undertaken with the purpose of shielding the person concerned from criminal responsibility, or procedures are conducted in a manner that is inconsistent with an intent to bring the person to justice, issues of unwillingness and genuinity will arise.337 The Rome Criteria sets an admissibility criterion and further elaborates the meaning of unwillingness and inability. However, how does the ICC determine the intention of national courts? Which factors does it take into consideration and what is the extent of its discretion in making an interpretation of article 17? Finally, in making an admissibility determination, how does the ICC balance the scope of article 17 and its role as an international criminal court?

The first part of this chapter will be devoted to analysing the meaning of “unwilling”, “unable” and “genuine” in light of the principle of complementarity. In the second part of the chapter, it will be assessed whether or not violations of “due process” indicate “unwillingness” or “inability” or “ungenuinity” at the national level. The recent ICC decisions on the admissibility of the case against Abdullah Al-Senussi338 has generated a debate on whether the ICC has the role of monitoring respect to the principles of due process during the national criminal proceedings. Even if its role is not as extensive as a human rights court with the ability to invalidate proceedings at the national courts or to make a judgment on the

336 T. van Boven, ‘Victim-Oriented Perspectives: Rights and Realities’, in T. Bonacker and C. Safferling (eds.), Victims of International Crimes: An Interdisciplinary Discourse (The Hague: T.M.C. Asser Press, 2003) 17-27, at 21.337 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 17 (2); see also, N. Nabil Jurdi, The International Criminal Court and National Courts: A Contentious Relationship (Ashgate Publishing Limited, 2011), at 37.338 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No: ICC-01/11-01/11-466-Red, 11 October 2013; ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11 OA 6, 24 July 2014.

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level of respect to the fair trial rights acting as a monitoring body, if the Court determines due process violations at the national level,339 it is in line with its objectives to determine a case admissible if the violation indicated lack of independence or impartiality contrary to the intention to bring the person to justice. Finally, an analysis and an interpretation of the reasoning of the Appeals Chamber’s Al-Senussi decision will be made to explore whether there can be “legislative unwillingness” of States, through adopting laws that will serve the perpetrators to evade justice and cause egregious due process violations which will make it impossible for justice to be genuinely established.

2. Legal background to the principle of complementarity

The establishment of the ICC is a result of a compromise on the part of the states that acted with a determination to ensure the prevention of impunity for ‘the most serious crimes of concern to the international community as a whole’,340 through laying this obligation primarily on the effective prosecution of such crimes at the national level. This compromise is reflected in the Preamble and article 17 of the Rome Statute of the International Criminal Court (‘the Rome Statute’) as the ‘principle of complementarity’. Pursuant to paragraph 10 of the Preamble, the Court is established complementary to national criminal jurisdictions. Having regard to this principle article 17 establishes the admissibility criteria, a contrario reading of which states that a case is admissible at the ICC, when their national judicial system is “unwilling” or “unable” to adjudicate them for possible perpetration of core crimes under the Statute.

The principle of complementarity should not be seen as giving primacy to the interest and sovereignty of states or a way of avoiding intervention to national jurisdictions but more as an ‘indirect enforcement mechanism’341 of international criminal law. Firstly, no international court has the capacity or resources to adjudicate each and every serious crime committed around the world. Secondly, international system does not have an enforcement mechanism that is as effective as the national systems. Since, effectiveness of exercising jurisdiction relies on a comprehensive mechanism consisting of judicial, executive and administrative bodies and a police force, it is more suitable for states to adjudicate perpetrators of international crimes.342 Moreover, the Court is not established to replace the national systems, but to fight against impunity of perpetrators of serious crimes which international community cannot accept to let go off unpunished. Finally, and most relevantly to this essay, even before a case is prosecuted at the ICC level, obligation to amend the national law upon ratification of the Rome Statute as a consequence of the principle of complementarity creates accountability for crimes at the national level and contributes to the rule of law.343 It is through the obligation

339 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 17 (2): In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, […].340 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, Preamble.341 M.C. Bassiouni, Reflections on Contemporary Developments in International Criminal Justice, in B.S. Brown (eds), Research Handbook on International Criminal Law (The Massachusetts: Edward Elgar Publishing Ltd., 2011) 409-417, at 412.342 N. Nabil Jurdi, The International Criminal Court and National Courts: A Contentious Relationship (Ashgate Publishing Limited, 2011), at 19.343 F. Megret, ‘Too Much of a Good Thing? ICC Implementation and the Uses of Complementarity’, in C. Stahn and M. El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: Cambridge University Press, 2011), 361-386, at 362.

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to amend the law that national legislations can gradually be consistent despite the difference in legal systems. It is not to say that national legislations should be uniformed regardless of the differences of each legal system, but rather to enable crimes of concern to humanity to be effectively prosecuted and adequately punished in every legal system around the world. It is the consistency of national legislations as such which can ensure impunity, and that is the most significant contribution of international criminal law. As a matter of fact, without the principle of complementarity and the obligations on States rising out of this principle, the Statute would turn into a declaration of wishes rather than a tool to prevent impunity. As the former Chief Prosecutor Mr Luis Moreno-Ocampo stated in his speech on 2003:

As a consequence of complementarity, the number of cases that reach the Court should not be a measure to its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.344

(a) Legal roots of the principle of complementarity

Until the adoption of the Rome Statute in 1998, international criminal law relied on the ‘indirect enforcement system’345 of national jurisdictions. This mechanism relied on implementation of international criminal law at the domestic judicial systems and prosecution by the national courts. However, this mechanism was less than sufficient to ensure impunity for crimes that were shocking to humanity. Firstly, there was lack of consistency of domestic implementation of international criminal law.346 And secondly, many individuals responsible for international crimes went away without facing prosecution and thus the enforcement mechanism proved insufficient to preclude impunity for the core crimes. Since there was not a binding document before the adoption of the Rome Statute, the only legal source for the obligation to prosecute international crimes was pursuant to the customary rules of jus cogens, some of which create erga omnes duty to prevent and prosecute.347

Although, the enforcement mechanism of ICL has been enhanced with the Rome Statute and the establishment of the Court, it is still weak compared to national systems. The only option for the Court to attain its objectives is for it to be an institution complementary to national systems. The purpose of principle of

344 Statement made at the ceremony for the solemn undertaking of the Chief Prosecutor of the International Criminal Court, Monday, 16 June 2003, The Peace Palace The Hague, The Netherlands. ICC-OTP 2003. Available at:http://www.google.se/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CCAQFjAA&url=http%3A%2F%2Fwww.iccnow.org%2Fdocuments%2FMorenoOcampo16June03.pdf&ei=aHGEVOrFCIOCzAPpx4CIDw&usg=AFQjCNGq1-Q7XGDWDYfPF1TJnTgDPuMpFQ.345 N. Nabil Jurdi, The International Criminal Court and National Courts: A Contentious Relationship (Ashgate Publishing Limited, 2011), at 19.346 N. Nabil Jurdi, The International Criminal Court and National Courts: A Contentious Relationship (Ashgate Publishing Limited, 2011), at 19.347 M. C. Bassiouni, ‘International Crimes: Jus Cogens and Obligatio Erga Omnes’, 59 Law and Contemporary Problems (1996) 63-74, at 63; J. Sarkin, ‘Why the Prohibition of Enforced Disappearance Has Attained Jus Cogens Status in International Law’, 81 Nordic Journal of International Law (2012), 537-583, at 582.

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http://www.google.se/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CCAQFjAA&url=http%3A%2F%2Fwww.iccnow.org%2Fdocuments%2FMorenoOcampo16June03.pdf&ei=aHGEVOrFCIOCzAPpx4CIDw&usg=AFQjCNGq1-Q7XGDWDYfPF1TJnTgDPuMpFQ




complementarity is to establish ICC as a ‘checking body’348 that would assure the indirect enforcement mechanism to function well, through constricting States for better consistency of implementation at the national level guided by the Rome Statute and by ensuring prosecution without leaving it up to the will of the states. Thus, the principle of complementarity aims to fill the gaps yielding to ineffectiveness of the indirect enforcement mechanism, while giving States the opportunity to preserve their sovereignty. Proper application of this principle by the Prosecutor of the ICC is at utmost importance for the institution’s functioning and that is why the relationship of the national mechanisms and the ICC requires a comprehensive approach that is consistent both with the intention of the drafters of the Rome Statute and with the recent developments of international criminal law.

Pursuant to Article 17(1), which sets out the criteria for the admissibility of cases at the ICC, a case shall be determined inadmissible:

(a) if it is being investigated or prosecuted at the domestic level by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;(b) if the case has already been investigated by a State and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;(c) the person concerned has already been tried for conduct which is thesubject of the complaint, and a trial by the Court is not permitted underarticle 20, paragraph 3;

In any case, according to Article 17(1)(d), only cases of certain gravity will be admissible to justify further action by the Court, as the Court is established to prosecute the most serious crimes that are of concern to humanity as a whole (Art. 5 ICC Statute).

That is to say, if the State has taken no action to investigate or to prosecute the allegations against the accused, most likely the case will be declared admissible before the ICC. Hence, only if a case is currently being investigated or prosecuted at the national level, or there has been a decision not to prosecute the person concerned, the Court has to determine whether or not there was an unwillingness or inability to genuinely carry out the investigation or prosecution. The issue of determining unwillingness, or inability and the meaning and application of ‘genuinity’ is crucial to understand the level of discretion the Court shall have when deciding on admissibility. The intention of the States to limit the discretionary power of the Court is reflected in paragraph 2 and 3 of Article 17, which elaborate in detail how to interpret unwillingness and inability. Thus, correct interpretation of the article should be given by analysing the wording of the article accompanied with the intention of the drafters and the purpose and objective of the Rome Statute.349

348 N. Nabil Jurdi, The International Criminal Court and National Courts: A Contentious Relationship (Ashgate Publishing Limited, 2011), at 19.349 Vienna Convention on the Law of Treaties, adopted on 23 May 1969, entry into force 27 January 1980, article 31.

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(b) “Unwilling” or “unable” to genuinely carry out an investigation or to prosecute

According to article 17(2) of the Rome Statute when determining unwillingness, the Court shall have regard to “the principles of due process recognized by international law” and consider whether:

a) the proceedings at the national level were made for the purpose of shielding the person concerned from criminal responsibility; b) there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; c) the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.350

In order to determine inability in a particular case, article 17(3) prescribes the Court to consider “whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings”.351

During the negotiations for the adoption of the Rome Statute, States regarded it necessary to elaborate three issues regarding Article 17(2) and (3).352 Since they wanted to limit the discretionary power of the ICC as much as possible, a deliberate effort was exerted to overcome any ambiguity that might arise due to the wording of the article. First of all, in order to delimit the meaning and the content of ‘due process’ rights, States changed the wording into ‘the principles of due process recognized by international law’ as a reflection of their intention to narrow down the discretion of the Court to interpret “willingness”. 353 This addition limits the interpretation of due process to the recognized rules of international law in the treaties, conventions and customary law agreed upon by States.354 Secondly, although, initially Article 17(3) said ‘partial collapse’, this expression was then replaced by ‘substantial’, again to limit the circumstances when the Court may consider a legal system ‘unable’.355 It was argued that even if a state’s judicial system partially collapses, it can continue to be ‘able’ to bring the person to justice through enforcing its laws.356 Thirdly, the original wording of Article 17(2)(b) was ‘undue delay’, which was then replaced by ‘unjustified’ to avoid broader room for

350 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 17(2).351 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 17(3).352 In the draft versions it was article 15(2) and (3).353 J. Holmes, ‘The Principle of Complementarity’, in R. Lee (eds.), The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (The Hague, Kluwer Law International, 1999) 41-78, at 53.354 J. Holmes, ‘The Principle of Complementarity’, in R. Lee (eds.), The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (The Hague, Kluwer Law International, 1999) 41-78, at 53.355 N. Nabil Jurdi, The International Criminal Court and National Courts: A Contentious Relationship (Ashgate Publishing Limited, 2011), 15.356J. Holmes, ‘Complementarity: National Courts versus the Intrnational Criminal Court’, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press) 667-678, at 677.

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discretion enjoyed by the Court. To replace it with “unjustified” gives the opportunity for the states to ‘justify’ the delay based on their national circumstances.357 Finally, a reference to the preamble and to article 1 was added to the chapeau of Article 17, highlighting the complementary existence of the ICC and need to take the principle into consideration regarding admissibility decisions.

All these concerns reflect the intention of the drafters to limit the discretionary powers of the Court when deciding on admissibility and the preference towards a strict application of the principle of complementarity.

(c) National legislation and the principle of complementarity – a two-fold obligation

The principle of complementarity creates the obligation of States Parties to amend their national legislation in order to effectively investigate and prosecute international crimes and to “establish a legal system in conformity with the requirements of the Statute”.358 It “is designed to ensure that national authorities devote serious attention to their obligations to investigate and prosecute such [core] crimes”359 and envisaged as a “catalyst for domestic proceedings”.360 To avoid a case to be considered admissible under article 17, due to ’unwillingness’ or ’inability’ of the national judicial system, both the substantive law and the procedural law of the State must be amended enabling perpetrators of a crime falling under the jurisdiction of the ICC, to be brought to justice. Thereby, the obligation rising out of the principle of complementarity is a two-fold obligation.

Obligation to amend the national legislation is also reiterated in paragraph 4 of the preamble of the Rome Statute, which reads “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”.

Amending the national legislation has the most significant impact on the decisions on the admissibility of cases at the ICC, which also relates to the obligation of States Parties to cooperate,361 as expressed in paragraph 4 of the Preamble and article 86 of the Rome Statute which provides that the “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in the investigation and prosecution of crimes within the jurisdiction of the Court.”

i) Obligation to amend the substantive law

357 M. C. Bassiouni, ‘Symposium: Negotiating the Treaty of Rome on the Establishment of the International Criminal Court’, 32 Cornell International Law Journal (1999) 443-469, at 451.358 L. Yang, ‘On the Principle of Complementarity in the Rome Statute of the International Criminal Court’, 4 Chinese Journal of International Law (2005) 121-132, at 124.359 Statement of H E Mr. Pfanzelter, Permanent Representative of Austria to the United nations, are the meeting of the Security Council on Justice and the Rule of Law on 30 September 2003, Security Council 4835th meeting, S/PV.4835. See also, J. K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions, International Courts and Tribunals Series, R. Mackenzie, C.P.R. Romano and P. Sands (eds.), (Oxford: Oxford University Press, 2008) 309-340, at 309.360 J. K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions, International Courts and Tribunals Series, R. Mackenzie, C.P.R. Romano and P. Sands (eds.), (Oxford: Oxford University Press, 2008) 309-340, at 309.361 F. Megret, ‘Too Much of a Good Thing? ICC Implementation and the Uses of Complementarity’, in C. Stahn and M. El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: Cambridge University Press, 2011) 361-386, at 364.

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In order for States Parties to be able to investigate and prosecute crimes prohibited under the Rome Statute, their legislation must enable them to exercise jurisdiction over core crimes and make these crimes punishable. Consequently, if their existing law is not adequate States Parties have the obligation to amend their substantive law. Although “applying the domestic law in prosecuting international crimes as ordinary offences” will not be sufficient for an effective prosecution of perpetrators, the Rome Statute neither obliges States Parties to adopt the exact same definitions of crimes in their domestic legislation, nor to criminalize the offences enlisted in it.362 Definitions under the Rome Statute will apply to the prosecutions at the ICC itself, but nevertheless, national and international criminal procedure (such as the evidential standards, fact-finding capacity of the courts, etc.) are different from each other. For this reason, it is possible and for some crimes necessary to adopt different definitions with different elements of core crimes at the national legislation. Indeed, “mirroring” Rome Statute with an urge to homogenise international criminal law would be undermining the “diversity of approaches” that can be implemented “to delivering on the promise of international criminal justice”.363

In the paper entitled ”Checklist for Effective Implementation for States” released by Amnesty International, it is advised that States Parties make crimes under international criminal law also crimes under national law, with definitions at least as broad as the ones in the Rome Statute. However, if another treaty or customary law introduces a “stronger definitions than those in the Statute”, then the stronger and broader definitions should be implemented in the national legislation.364

ii) Obligation to amend the procedural law

The Rome Statute does not impose a strict obligation to amend the procedural law as such. However, inadequacy of procedural law might be an indication of inability to prosecute and thus there is an obligation to amend the procedural law if states do not want to jeopardize cases to be admitted to the ICC.

Article 17(2) of the Rome Statute and rule 51 of the Rules of Procedure (“RoP”) spells out that regard must be given to the ’principles of due process recognized by international law’365. Article 17 (2)(c) provides that the proceedings should be

362 S.M.H. Nouwen, ‘Fine-tuning complementarity’, in B.S. Brown (eds), Research Handbook on International Criminal Law (The Massachusetts: Edward Elgar Publishing Ltd., 2011) 206-231, at 214.363 F. Megret, ‘Too Much of a Good Thing? ICC Implementation and the Uses of Complementarity’, in C. Stahn and M. El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: Cambridge University Press, 2011), 361-386, at 363.364 Amnesty International, The International Criminal Court: Checklist for Effective Implementation, IOR 40/11/00, July 2000.365 Although ’principles of due process’ is a broad concept regulated in every legal system, there is no clear definition of it under international law. Due process rights can be separated into procedural and substantive due process rights, but even this distinction is not clearly made and it is not a clear-cut task to identify which procedural rights falls under which category. Furthermore, the comparison between the meaning of ‘fair’ and ‘due’ as in ‘fair trial rights’ and ‘due process rights’ is not made, leading to an ambiguity and a confusing overlapping of both terms. For clarity, it will be assumed all the rights referred to as due process rights under the international law to be ’procedural due process rights’. Thus, ’substantive due process rights’, must be excluded from the meaning of ’due process rights’ concerning the way it is used in the Rome Statute. The term ’principles of due process’ is used inter-changeably with ’fair trial rights’ by some authors. Nevertheless, regarding the obligation of States Parties to amend their national legislation, limiting the meaning of ‘due process rights’ does not lower the obligation of the States Parties to make amendments to their national criminal procedural law. Finally it should be born in mind that, even the ’substantive due process rights’ are part of the procedural law of a legal system and not under the substantive law.

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conducted in a manner that is independent, impartial and consistent with the intent to bring the person concerned to justice. An assessment of impartiality, independence and intent will be made giving regard to “principles of due process”.366 The article specifies principles of due process recognized by international law, guiding the ICC which standards to use in its assessment of unwillingness. Not every due process principle existing within a national system will be considered to be fulfilling this criterion, while on the other hand it is not up to the complete discretion of the ICC judges to decide which principles will satisfy the standard of not being “unwilling”.367 For consistency, “internationally recognized due process” standards should be considered to be the standards regulated under the International Covenant on Civil and Political Rights (ICCPR). Since there is multiplicity of legal systems around the world with different civil and criminal due process standards, the fair trial provisions under ICCPR should provide the baseline principles, without eliminating the possibility of States adopting diversity of methods in complying with these standards.

Various authors had examined how to draw the limits of the “due process” assessment of the proceedings at the national level. The issue arose after the admissibility decision of the Al-Senussi case in which the Pre-trial and Appeals Chambers applied the “unwillingness” and “inability” test to a different extent for the first time.368 Lack of a comprehensive approach by the Pre-trial Chamber generated a scholar overview of the role of the ICC to monitor States Parties’ obligation to comply with the principles of due process recognized by international law. The Appeals Chamber reiterated that the ICC does not have the role of a human rights court but found due process principles relevant in establishing unwillingness or inability of a state. As a result, it is now established by the Court that procedural laws of a state should also be adequate to demonstrate the intention to bring the person to justice and should not enable the suspect to evade justice. Although not a formal obligation, it is a requirement for states to amend their procedural law in compliance with internationally recognized principles of due process in order to have the primacy to prosecute cases under the jurisdiction of the ICC.

Unlike argued by some NGOs, the obligation to amend procedural law does not mean “incorporation of the Rome Statute due process guarantees”369. It does not even mean that “the highest international standards for fair trials”370 should be adopted at the national level either. As Triffterer asserted, “it may not be necessary that States Parties ‘copy’ the procedure applicable in cases before the Court. Instead, as Megret ascertained, “the basic pillars of a fair trial must be respected” to provide a genuine form of justice.

3. Al-Senussi decision on admissibility

366 L. Yang, ‘On the Principle of Complementarity in the Rome Statute of the International Criminal Court’, 4 Chinese Journal of International Law (2005) 121-132, at 126.367 L. Yang, ‘On the Principle of Complementarity in the Rome Statute of the International Criminal Court’, 4 Chinese Journal of International Law (2005) 121-132, at 126.368 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No: ICC-01/11-01/11-466-Red, 11 October 2013; ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11 OA 6, 24 July 2014.369 F. Megret, ‘Too Much of a Good Thing? ICC Implementation and the Uses of Complementarity’, in C. Stahn and M. El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: Cambridge University Press, 2011) 361-386, at 371.370 Human Rights Watch, Making the International Criminal Court Work: A Handbook for Implementing the Rome Statute, Vol. 13 No. 4(G), September 2001.

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(a) Introduction

Deceased leader of Libya Muammar Gaddafi, his right hand man and brother-in-law Al-Senussi and his second eldest son and the de facto Prime Minister Al-Islam were the first to be charged with “enforced disappearance” by the ICC. 371 Even though Libya is not a State party to the Rome Statute, Security Council used its power to refer the issue in Libya to the ICC through resolution 1970,372 regarding the alleged crimes against humanity committed during the three months of the Libyan uprisings on 2011. Following the resolution, former Prosecutor of the ICC Luis Moreno-Ocampo, who is Argentinian and who previously served as an assistant Chief Prosecutor at the “Trial of the Juntas” in Argentina, 373 called for an arrest warrant of Colonel Muammar Gaddafi, Al-Senussi and Al-Islam, on 15 February 2011, claiming there were “reasonable grounds to believe” that three accused were criminally responsible for “killings, arrests, detentions, disappearances and acts of ill-treatment against unarmed demonstrators and alleged dissidents”.374 Following his application the Pre-trial Chamber issued two arrest warrants against Al-Islam and Al-Senussi. 375 However, upon death of the Colonel Muammar Gaddafi the case against the deceased was dismissed and the other two accused were charged with murder and persecution, but not enforced disappearance.

On April 2013, the Defence challenged the admissibility of the case376 regarding Abdullah Al-Senussi before the Pre-Trial Chamber. It should be noted that this challenge was unusual in the sense that, the Defence in this case pleaded in favour of the case to be admissible at the ICC, rather than it to be prosecuted at the national level. The Pre-Trial Chamber decided377, however, that the case against Mr Al-Senussi was inadmissible before the Court as it found that the Libyan authorities were competent and willing and able to genuinely carry out the investigation over the crimes. However, this decision does not concern Saif Al-Islam, and Libya still bears the obligation to surrender him.

371 S. C. Grover, The Torture of Children During Armed Conflicts : The ICC's Failure to Prosecute and the Negation of Children's Human Dignity, (1st edition, Berlin, Heidelberg : Springer Berlin Heidelberg, 2014) 155-160, at 158.372 United Nations Security Council Resolution 1970, S/RES/1970 (2011), 26 February 26 2011, available at:http://www.un.org/News/Press/docs/2011/sc10187.doc.htm.373 Trial of the Juntas”, in which Julia Cesar Strassera was the Chief Prosecutor, also dealt with enforced disappearances that occurred during the Dirty War in Argentina, see: http://justiceinconflict.org/2011/03/03/lost-in-the-shuffle-argentina-puts-dirty-war-leaders-on-trial/.374 ICC, Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, No.: ICC-01/11, 16 May 2011, § 59; see also, UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 58(1): “At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court”; and ICC, Appeals Chamber, Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir", No.: ICC-02/05-01/09-OA, 3 February 2010, § 30.375 ICC, Pre-trial Chamber I, Warrants of Arrest for Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, No.: ICC-01/11, 27 June 2011.376 ICC, Pre-trial Chamber, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 2 April 2013, Case No:ICC-01/11-01/11-307-Red2.377 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 11 October 2013, Case No: ICC-01/11-01/11-466-Red.

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Al-Senussi case378 is significant regarding the assessment on admissibility, in which the Pre-Trial Chamber dwelled upon the issue whether violations of due process rights at the national proceedings of a case can be a ground for admissibility.

(b) “Due process” assessment by the Pre-trial and Appeals Chambers

The Defence in the Al-Senussi case alleged “the domestic proceedings against Mr Al-Senussi are being conducted in violation of his fundamental rights or are otherwise vitiated by procedural irregularities”. Defence further submitted that:

[…] considerations of “due process” are inherent in the assessment of a State Parties’ ability and willingness to conduct “genuine” proceedings and “must […] be even more stringent in a case, such as this, where a conviction in a national court would very likely result in the suspect being sentenced to death.379

The Defence, indeed, separated facts indicating unwillingness of Libya into two categories: While it considered due process considerations to be affecting the “validity” of the proceedings against the Defendant, another category indicating unwillingness of Libya was “facts which allegedly affect the functioning of the Libyan judicial system” which will be excluded in this analysis.

In response to the first category of facts of the Defence on the validity of the proceedings based on due process considerations, the Pre-Trial Chamber reiterated that in making an assessment of inability or unwillingness of Libya in carrying out proceedings against Mr Al-Senussi, reference should be to “Libya’s own national law”, which is observed by the Court in paragraph 203, to be the law set out in the Libyan Criminal Procedure Code and Libya’s Constitution Declaration of 3 August 2011, as well as human rights instruments Libya has ratified.380 In saying so, the Court has asserted that it will make an assessment of due process rights of the accused based on human rights principles recognized by international law and ratified by Libya.

Regarding the due process considerations at the national proceedings in Libya, the Defence argued the invalidity of proceedings and thus demanded the Court to admit the case admissible relying on four points, namely, that the domestic proceedings to have been tainted by unjustified delay, the Defendant have not been benefiting from legal assistance, other fundamental rights of the Defendant having been violated/or having had no indication of being respected and finally, the proceedings to have been prejudiced by a systemic lack of independence and impartiality of the Libyan judicial system.

In response to invalidity due to violation of due process rights of the accused, the Pre-trial Chamber stated that violations of the accused’s procedural rights cannot be a reason to determine unwillingness or inability under article 17, unless it is connected to one of the scenarios in articles 17(2) and (3). In the Pre-trial Chamber’s view, due process violations may particularly be relevant to the

378 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 11 October 2013, Case No: ICC-01/11-01/11-466-Red.379 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 11 October 2013, Case No: ICC-01/11-01/11-466-Red, § 220.380 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 11 October 2013, Case No: ICC-01/11-01/11-466-Red, § 221.

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determination of “independence” and “impartiality” of the national proceedings as provided in article 17(2)(c). The Pre-trial Chamber emphasized the cumulative nature of article 17(2)(c), in which lack of impartiality and independence must be “inconsistent with the intent to bring the person to justice”. The Court notes, however, that in the Rules of Procedure and Evidence of ICTY, unlike the Rome Statute the requirement, was constructed disjunctively.381 Finally, the Court finds “no concrete information” submitted by the Defence for it to infer unwillingness or inability of the Libyan national judicial system and qualify the arguments made by the Defence as ‘uncertainties’ and ‘doubts’.382 Therefore, the Pre-trial Chamber does not confer it upon Libya to disprove these allegations either. According to the Pre-trial Chamber, Libya has indeed addressed issues of due process rights in its submission. The Chamber does take into consideration, on the other hand, public statements made by former government members on in which ways the Defendant’s “presumption of innocence” has been disrespected indicating lack of independence.383 The Chamber merely is “not persuaded” by these statements either, without specifying its standard of proof.384 Following the decision the Defence made an appeal to the Appeals Chamber on the grounds that the “Pre-trial Chamber erred in law and fact and abused its discretion in finding that Libya is not unwilling and unable genuinely to carry out the proceedings” against the Defendant, and requested the Appeals Chamber “to consider new evidence which was not previously available, concerning the mistreatment of Al-Senussi”, which is relevant to the previous ground. On 24 July 2014, the Appeals Chamber confirmed385 the Pre-trial Chamber’s view that the Defence has not substantiated its allegations and found it reasonable to reverse the burden of proof,386 which would otherwise potentially lead the proceedings to be “significantly delayed”387.

In answering whether lack of due process protection during the national proceedings should lead to a finding of unwillingness, the Appeals Chamber considered that denial of a fair trial right can be relevant in determining whether or not the proceedings are “being conducted independently or impartially”, and whether they are “being conducted in a manner which is inconsistent with an intent to bring the person concerned to justice” depending on the specific circumstances.388 The Appeals Chamber reiterated that the ICC is not established to function as a human rights court nor has a monitoring role of the states’ human rights obligations. Nevertheless, a due process consideration is not declared

381 Article 9(ii) of the ICTY Rules of Procedure and Evidence: “[...] where it appears to the Prosecutor that in any such investigations or criminal proceedings instituted in the courts of any State [...] there is lack of impartiality or independence, or proceedings are designed to shield the accused from international criminal responsibility, or the case is not diligently prosecuted [...] the Prosecutor may propose to the Trial Chamber designated by the President that a formal request be made such court defer to the competence of the Tribunal”.382 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 11 October 2013, Case No: ICC-01/11-01/11-466-Red, § 239.383 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 11 October 2013, Case No: ICC-01/11-01/11-466-Red, § 241.384 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 11 October 2013, Case No: ICC-01/11-01/11-466-Red, § 241.385 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 24 July 2014, ICC-01/11-01/11 OA 6.386 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 24 July 2014, ICC-01/11-01/11 OA 6, § 243.387 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 24 July 2014, ICC-01/11-01/11 OA 6, §167.388 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 24 July 2014, ICC-01/11-01/11 OA 6, § 190.

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irrelevant for the task of determining unwillingness. After a closer analysis of the text, context, object and purpose of article 17(2)(c), the Appeals Chamber concluded that the determination is not on whether there is a violation of due process rights, but whether the manner in which the proceedings take place will evade justice. Violations of the due process rights can be a reason for a finding of unwillingness, if they are “so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice”, and “inconsistent with an intent to bring that person to justice”.389 Thus, while rejecting the Defence’s argument that disrespect of fair trial rights should be an indication of unwillingness, the Appeal’s Chamber creates a precedence by elaborating in which way due process consideration will be relevant to a determination of unwillingness.

(c) Analysis of the Pre-trial and Appeal Chambers’ assessment

i) Role of the ICC in addressing “due process” violations at the national proceedings – Scholar overview of the decision

In answering the question whether violations of due process would be a ground for admissibility, most authors tried to answer the question whether or not ICC has a role of a human rights court. Furthermore, the meaning of violations of ‘due process’ rights is consistently interpreted to be equivalent to violations of the human rights to a fair trial. Hence, much emphasis was put on the “fairness” granted to the individual, excluding other notions of criminal justice that “principles of due process” may have the objective to pursue. The former Prosecutor of the ICC stated in 2011: ‘[…] we are not a human rights Court. We are not checking the fairness of the proceedings. We are checking the genuineness of the proceedings.’390

Jurdi, on the other hand asserts that “‘the principles of due process recognized by international law’ imply the implementation of international human rights standards. The application of human rights principles of fair trial and due process is pivotal in the application of the complementarity principle.’391 He supports this interpretation by looking at article 21 of the Statute, which specifies the applicable law, and states that the ‘application and interpretation of law pursuant to this article [article 21] must be consistent with internationally recognized human rights’.392 He further states that ‘if the Court does not respect human rights and human rights of due process, that will be inconsistent with the intention of “bringing the person to justice” as delineated in paragraph 2 of article 17.’393 However, justification of this view given by Jurdi by referring to article 21 is not credible, since article 21 formulates the “applicable law” for the Court’s own proceedings, and it is a farfetched interpretation to say that ‘human rights’ standards referred in this article complements the meaning of ‘principles of due process under the international law’ stated in article 17(2). To make such a broad interpretation that openly gives the Court the role of a human rights court is also against the intention of the States Parties who negotiated intensely over limiting the discretionary power of the Court as much as possible. Yet, similar to Jurdi, according to Schabas, a case will be 389 ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 24 July 2014, ICC-01/11-01/11 OA 6, § 230. 390 Statement made by former ICC Prosecutor Luis Moreno-Ocampo during a visit to Libya in November 2011. Video available at: http:// www.aljazeera.com/news/africa/2011/11/2011112395821170909.html (visited on 17 December 2014)391 N. N. Jurdi, International Criminal Court and National Courts: A Contentious Relationship, 39.392 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 21.393 Ibid.

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admissible under the test of “willingness”, ‘in case of any violation of internationally recognized principles that is inconsistent with delivering a fair judgment for the accused.’394

Heller rejects these interpretations of complementarity that sees due process obligation as a test of ‘fairness’ and interprets the criteria to be on the ‘effectiveness’ of the proceedings.395 He argues that the Rome Statute ‘permits the Court to find a State Party “unwilling or unable” only if its legal proceedings are designed to make a defendant more difficult to convict. If its legal proceedings are designed to make the defendant easier to convict, the provision requires the Court to defer to the State Party no matter how unfair those proceedings may be.’ 396 As a criticism to Heller’s view, it should not go without saying that, the Court’s objectives consist of not only convicting the perpetrators at the national level, but also to reveal part of the historical truth, to provide reconciliation for the victims, to prevent future atrocities, etc. Therefore, Heller’s interpretation of admissibility on the ground of violations of the ‘principles of due process’ based on a test of effectiveness at the national level, will have the risk of deferring cases to States Parties, that will in the end not pursue these objectives. In the case of Libya, for example, Al-Senussi has not been given a legal representative, which will firstly result in part of the truth of the incidents to be not revealed. But more importantly, in the process of building a new nation in Libya, there is the risk of undermining the principles of rule of law, democracy, and human rights while building a new nation. Instead, in a post-conflict period, the conviction had the risk of taking the form of revenge rather than a fair proceeding establishing justice and providing reconciliation for the victims. In return, even if the national proceedings are ‘effective’ from the face of it, certain objectives of the international criminal law will be left unrealized if due process rights (that are essential for criminal justice) are not respected.

The ’due process under international law’ currently does not have a legal definition and since the term is used in various bodies of law, the discussion revolving around ‘due process’, rarely makes the distinction between the ‘due process’ that aims to deliver criminal justice through realizing the specific objectives of the ICC and the ‘due process’ under the human rights law, aiming to protect the individual from injustices and to provide fair trial rights. It should be reminded that, human rights are:

inherent to criminal justice only as part of a relatively recent historical effort to reconstruct criminal justice in the image of human rights, but we know for a fact that criminal justice existed before it was shaped by human rights and continues to prosper, in vast expanses of the world, at a certain distance from human rights.397

However in making this distinction, how will the ‘criminal justice’ be defined as? In the Al-Senussi case, the Pre-trial Chamber gives regard to the national context, implying that if the proceedings are consistent with the criminal justice system of

394W. Schabas, ’An Introduction to the International Criminal Court, Cambridge: Cambridge University Press, 24.395 K.J. Heller, ’The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’, Criminal Law Forum, 2006, 10. 396 Ibid.397 F. Megret, M.G. Samson, ’Holding the Line on Complementarity in Libya: The Case for Tolerating Flawed Domestic Trials’, 11 Journal of International Criminal Justice (2013) 571- 589, at 584.

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the State party, due process principles will be assumed to be respected. It is doubtful, though, that this approach is in line with the principle of complementarity, since it completely disregards ‘criminal justice’ that is of concern to the humanity as a whole, and the main objectives of establishing an international court. If the Court goes slightly further in its assessment of the national proceedings based on a ‘universal’ idea of criminal justice, this will not necessarily make the court a human rights court or a monitoring body.

The Court’s discretionary power should, by all means, be limited to its specific objectives, and its institutional limitations. An idea of ‘fairness’ is inherent in ‘criminal justice’, but instead of giving a selective meaning to ‘fairness’ as an individual right (or unfairness as a violation of “fair trial” human rights) or taking an over-practical approach of ’effectiveness’ as Heller does, we should instead seek how to limit ‘fairness’ consideration within the meaning of ‘due process’ in line with the limited functions and specific objectives of the Court. One way of doing this is for the Court, through its admissibility decisions, to systematically distinguish which due process rights are integral to the establishment of ‘criminal justice’ concerning the humanity as a whole. If the Court takes its approach further and matches specific due process rights to its specific functions and objectives, the broad and undefined meaning of “due process” will be limited and tailored for these specific objectives of the Court. This test will consequently provide a “test for effectiveness” for the enforcement of ICL, which is similar to what Heller suggests. The difference from what Heller suggests will be, though, that the ‘effectiveness’ would then be more in the sense of the enforcement of ICL and not just the effectiveness of national proceedings based on their national context, which may or may not be consistent with ICL.398

ii) Due process rights integral to “criminal justice”

In the Al-Senussi decision the Pre-trial Chamber, has asserted that it will make an assessment of due process rights of the accused based on human rights principles recognized by international law and ratified by Libya. However, in its assessment, the Court merely stated that it was not “persuaded” by the allegations made by the Defence on the due process violations of the accused, without specifying its standard of proof.399

Secondly, the Pre-trial Chamber should have specified which due process rights are integral to the establishment of ‘criminal justice’ concerning the humanity as a whole. As explained above, full compliance with “fair trial rights” as human rights is not required under the principle of complementarity, and the Court does not have the role of a “human rights court” or a “human rights monitoring body”.400 The objectives of ICC are to end impunity for the most serious crimes and to “deliver justice”. Therefore, any assessment by the Court on the fair trial violations at the national level should aim specifically to determine whether these violations amount to preventing its core objectives. In other words, “what is strictly connected to complementarity”401 should determine the role of the Court. The Pre-trial Chamber

398 S. Erener, ‘Do violations of “due process” rights constitute a ground for a finding of “unwillingness” under the “principle of complementarity” of the Rome Statute?’ (final essay for the Procedural Law of Human Rights course at Lund University, Fall 2014) 399 The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 11 October 2013, Case No: ICC-01/11-01/11-466-Red, § 241.400 Informal Expert Paper: The Principle of Complementarity in Practice”, ICC-01/04-01/07-1008-AnxA.401 F. Megret, ‘Too Much of a Good Thing? ICC Implementation and the Uses of Complementarity’, in C. Stahn and M. El Zeidy (eds.), The International Criminal Court and Complementarity: From

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does adopt a systematic approach by distinguishing between legislative failures and the factual violations of due process. Furthermore, the Appeals Chamber, establishes that the determination should not be on determining breach of the due process rights of the individual but it should rather be to establish whether the proceedings are conducted to evade justice through creating a sham trial. Due process rights of the individual can only be relevant to an admissibility determination in some circumstances if there is an “egregious” violation that would prevent proceedings to provide genuine form of justice. While the Appeals Chamber confirmed the decision to reverse the burden of proof for the Defence and to require factual substantiation of allegations of unwillingness, the criteria set by itself is an ambiguous one itself since it does not elaborate what would be an indication of impossibility for genuine form of justice to be provided due to “egregious” violations of due process rights. The meaning of “justice” cannot be separate form the notion of “fairness” towards the individuals concerned, thus “evading justice” can potentially be through the form of violating principles of due process, making the line between “egregious” violation and less serious forms of violations hard to substantiate factually.

Finally, implementing laws that are complying with States parties’ obligations is a process where States Parties get the primary opportunity to demonstrate their willingness to put an end to impunity and to deliver justice in regards of international criminal law. This is the most basic and primary obligation under the principle of complementarity. If the intention to comply with the principle is not reflected in the laws of a State party, then the threshold to “prove” willingness must be higher, and the burden of proof must be on the State itself. If the criminal legislation complies with the intention to bring the person to justice and indicates a genuine aim by the legislators to ensure impartial and independent proceedings, it would be more difficult to make a complete and accurate assessment of admissibility of a case until the whole national proceeding is completed.402 If however, “unwillingness” is apparent at the face of the legislation itself, the Court should not consider reversing the burden of proof on violations of due process rights, and secondly the Court should not give too much weight to the steps taken at each step of the whole proceeding from beginning to the end to understand whether there is the risk of unfairness of the proceedings. Thus, if the criminal provisions are drafted in a way that will potentially lead to proceedings with lack of impartiality, independence and intention to bring the person to justice, it is an indication of unwillingness and a proof that the State Party is not complying with its primary obligation under the principle of complementarity. In cases of such “legislative unwillingness”, the Court should adopt a lower standard of proof to determine violations of due process rights, such as circumstantial evidence and should leave the burden of proof on the State party to prove in which ways due process rights integral to criminal justice are respected and protected in that particular case. Thus, the States Parties will be aware that, by not complying with their primary obligation to amend their substantive and procedural law, they will be less strongly shielded from the ICC’s jurisdiction.

On 2003, ICC approved an expert consultation process on complementarity in practice, to support the admissibility decisions of the Chief Prosecutor of the ICC and his office. A group of experts403 was gathered in order to produce an informal

Theory to Practice (Cambridge: Cambridge University Press, 2011), 361-386, 371.402 Declaration of Judge Christine Van den Wyngaert, Pre-trial Chamber, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 11 October 2013, Case No: ICC-01/11-01/11-466-Anx.403 The group consisted of; Xabier Agirre, Antonio Cassese, Rolf Einar Fife, Håkan Friman, Christopher K. Hall, John T. Holmes, Jann Kleffner, Hector Olasolo, Norul H. Rashid, Darryl Robinson, Elizabeth Wilmshurst, Andreas Zimmermann. Experts operares in a collegial manner and

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paper conducive to the complementarity regime of the Rome Statute. 404 In support of the above view, the Informal Expert Paper makes suggestions on the factors that may be relevant in determining the unwillingness or inability of a State Party to genuinely carry out proceedings, with the hope that the Office of the Prosecutor will organise them in a structured and systematised format. To begin with, experts noted that information gathered on the background context can support an admissibility assessment of “unwillingness” or “inability” both.405 Accordingly, legislative framework (offences, jurisdiction, procedures, defences), legal regime of access to evidence and legal regime of due process standards can be relevant to assess unwillingness or inability.406 More specific facts and evidence to prove “unwillingness” can be gathered through expert witnesses on the politicised nature of a national system to shield the perpetrator. Also, “commonality of purpose between suspected perpetrators and state authorities involved in investigation, prosecution and adjudication” will constitute “circumstantial evidence for an inference of non-genuineness”.407 Although not seen sufficient on its own, expert paper considers whether or not substantive law to be generally compatible with international standards, and whether or not any departures raising concerns on genuineness” as a relevant question to ask alongside other indicators of unwillingness. To determine “inability”, expert paper suggests that facts and evidence on the “lack of substantive or procedural penal legislation rendering ‘unavailable’, and on the “lack of access rendering system ‘unavailable’” would be relevant to consider.408

iii) General Conclusion on Complementarity

The ICC does not replace national criminal justice systems but rather it complements them. Thus, according to Article 17 of the Rome Statute a case can be declared admissible only if the State Party is unable or unwilling to investigate and prosecute the crimes concerned. According to the chapeau of Article 17, regard must be given to whether the principles of due process under international law are respected at the national level while making an assessment on the unwillingness or the inability of a State Party.

Principle of complementarity ensures enforcement of international criminal law, not only through prosecutions at the ICC, but also through creating obligations for the States to amend their law, impact of which is to create accountability, to make national criminal law consistent and to contribute to the rule of law in general. It achieves having these effects, through the two-fold obligation it creates for the States Parties. The need to amend national substantive and procedural criminal law, does not mean that the national legislation should mirror the Rome Statute. Neither the definitions, nor the procedural aspects at the national level should reflect the exact same standards in the Rome Statute. It should, nevertheless, make sure that

developed a collective report and the informal paper does not reflect the views of each individual member. See, Informal Expert Paper: The Principle of Complementarity in Practice”, ICC-01/04-01/07-1008-AnxA.404 Informal Expert Paper: The Principle of Complementarity in Practice”, ICC-01/04-01/07-1008-AnxA.405 Informal Expert Paper: The Principle of Complementarity in Practice”, ICC-01/04-01/07-1008-AnxA, Annex 4.406 Informal Expert Paper: The Principle of Complementarity in Practice”, ICC-01/04-01/07-1008-AnxA, Annex 4.407 Informal Expert Paper: The Principle of Complementarity in Practice”, ICC-01/04-01/07-1008-AnxA, Annex 4.408 Informal Expert Paper: The Principle of Complementarity in Practice”, ICC-01/04-01/07-1008-AnxA, Annex 4.

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substantive and procedural law enable effective investigation and prosecution of cases and reflects the willingness to bring persons accused of international crimes to justice. Regarding the definitions of crimes in the national legislation, any definition would be in compliance with States Parties’ obligations as long as it serves this purpose. Thus, any definition should be broad enough as the definitions provided by the Rome Statute, but whenever there are definitions of a crime in other treaties, conventions or the customary law, stronger than the one in the Rome Statute, the broader ad stronger definitions should be implemented.409 Definition of a crime can have substantive as well as procedural aspects to it, so implementing a definition should reflect the two-fold obligation States have.

As discussed in the Al-Senussi decision, due process violations at the national level can be a ground for a finding of lack of impartiality and independence if; (a) national proceedings are conducted in a manner that will enable the suspect to evade justice and is inconsistent with an intent to bring the person concerned to justice.”410 (b) depending on the specific facts of a case, based on solid and sufficient proof that due process violations are so egregious that there cannot be any genuine form of justice provided.

To accept the role of the Court in assessing due process violations of the national proceedings does not mean to recognize the Court’s role as a human rights court or a human rights monitoring body. First of all, full compliance with “fair trial rights” (human rights) is not required under the principle of complementarity. Secondly, the objectives of ICC are to end impunity for the most serious crimes and to “deliver justice” for humanity. Therefore, any assessment by the Court on the fair trial violations at the national level should be to determine whether such violations amount to preventing specific objectives of the ICC.

Pursuant to the principle of complementarity, the scope of States Parties’ obligation to amend their law, and the recent decision on “due process” violations at the national level lead to the conclusion that, a legal definition of a crime that is not broad enough to ensure protection of due process rights at the national level can be an indication of unwillingness and could lead to the ICC to declare the case admissible. Since it is possible for a substantive law of a State Party to be indirectly violating the victims’ or the accused person’s due process rights to an extent that justice will not be established in a genuine manner, it is possible for the ICC to determine “legislative unwillingness” of a State Party, by looking at the substantive law to determine incompliance with the principles of due process. In determining this type of unwillingness, legislative framework, legal regime of access to evidence, legal regime of due process standards will be relevant factors to assess unwillingness, as explained in the Expert Paper. Laws that are insufficient to ensure respect to principles of due process can also be proven by circumstantial evidence on the politicized nature of a national system to shield a perpetrator. 411 Therefore, not only the unwillingness during the investigation or the prosecution of a person but due to insufficient protection provided by the legislative measures will be an indication of unwillingness and States parties laws of which are not complying with the principles of due process will be more exposed to ICC jurisdiction.

409 Amnesty International, July 2000, The International Criminal Court: Checklist for Effective Implementation, IOR 40/11/00.410 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 17(2).411 Informal Expert Paper: The Principle of Complementarity in Practice”, ICC-01/04-01/07-1008-AnxA, Annex 4.

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C. Analysis: Implementing the less adequate definition of enforced disappearance in criminal codes – Indication of “unwillingness” of States

More and more areas of law are entering into the scope of international law, which should be seen as a positive development since due to this tendency States are not completely at liberty in regulating rules that effect their citizens and instead they have to comply with supra-national rules. Expansion of international law in many areas has positive impact also for facilitating the representation of interests of many different groups of society who might be neglected by national legislators, or whose rights might not be fully protected due to denial or political unwillingness. While international human rights standards are aiming to eliminate such legal shortcomings which are to the disadvantage of victims through creating obligations for states, monitoring their compliance and at times creating enforcement mechanisms, fragmentation of law which leads to competing standards on a single issue does not always serve to the benefit of victims. Since international law is extremely fragmented, often, States have legal obligations under multiple instruments. Competing standards rising out of different legal instruments undermine clarity for which standards States should comply with. Since the main subject of international human rights law is the “human” factor, it is most appropriate to adopt a victims-oriented perspective when States make their decisions on how to create a balance between different obligations they are bound by and furthermore, corresponding to their obligations under criminal law, States should prioritize standards that are more to the advantage of victims’ rights to justice. Such an approach will be in line with the victims-oriented perspectives under international law, recently confirmed by UN Basic Principles and Guidelines on Impunity and Reparations.412

Both the International Convention on Enforced Disappearances and the Rome Statute enshrine provisions giving primacy to the rights of victims of violations of serious crimes, taking into consideration their especially vulnerable circumstances. Moreover, both instruments reflect states intention to end impunity for the perpetrators of enforced disappearance. Both instruments on the other hand require national legislation to be amended and enforced disappearance to be criminalized. While doing so, both instruments provide for a definition of enforced disappearance, setting different standards for criminalizing enforced disappearance. At the time when the Rome Statute was adopted the right not to be subjected to enforced disappearance was not an internationally recognized human right. The Rome Statute reflects the consensus that existed during its adoption on the prohibition of enforced disappearance as a crime against humanity, and it was upon the ratification of the Rome Statute that States started for the first time to implement enforced disappearance in their national criminal codes. However, with the adoption of the International Convention eight years later, States which have ratified both instruments agreed to be bound by both sets of standards under both instruments. Since, the prohibition of enforced disappearance developed historically from being a war crime, then to crime against humanity and then a

412 UN Commission on Human Rights (2005) Updated Set of principles for the protection and promotion of human rights through action to combat impunity, UN Doc. E/CN.4/2005/102/ Add.1, 8 February 2005; and UN General Assembly, Resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by UN General Assembly Resolution 60/147, 16 December 2005.

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human rights violation, national legislations should reflect the current status on the prohibition of enforced disappearance under international law. While a broad prohibition of the crime is possible under the international law currently, selecting to prohibit enforced disappearance on limited grounds and with a narrow definition pursuant to the Rome Statute runs the risk of indicating “unwillingness” of states to protect the rights of the victims of enforced disappearance.413

It was previously demonstrated in this chapter that a legal shortcoming in substantive law can give rise to procedural obstacles for the victims of a crime. Regarding enforced disappearances, as explained above, evidential standards at the national level are more stringent than at the international level. Furthermore, regional courts and Human Rights Committee case-law and NGO reports show that victims have less resources and less means to access evidence and to build their cases. As an example, as part of the implementation of the UN Basic Principles, reparation commissions were founded in some countries such as Argentina and Columbia. In Columbia, upon the establishment of a reparation commission, there were concerns that victims right to reparation would be impaired due to difficulty for the victims to satisfy procedural and evidential requirements and it was feared that victims who mostly belong to groups that are discriminated will face reprisals and lack of evidence adding up to their vulnerable position within the criminal justice system.414

Even if legislation of a country is adequate and reflects the standard under the International Convention, enforced disappearance is still a peculiar type of crime, aggravating victims’ attempts to pursue criminal proceedings. Indeed, even under a proper legal definition of the crime, victims of enforced disappearance will have to prove three elements of the crime at different stages of the proceedings, including the general intention of perpetrators to deprive the person of their liberty and to conceal information. It is almost certain that victims will encounter obstacles of different nature depending on the political and judicial context of the country they are pursuing justice at. Categorically, the first phase in pursuing justice is the complaining and denouncing disappearance suspicion to the police. Upon successful complaints made to the authorities, investigations will be initiated by the prosecutors, which might prevent the disappearance to occur by tracing the missing person, searching for records, identifying witnesses, etc. If prevention of disappearance is not successful, then investigations will be for the purpose of identifying suspected perpetrators or collecting evidence that will be sufficient for

413 It should be noted that, it is not suggested that there is no difference between prosecuting a person for an “ordinary” crime, even if the conduct amounts to a crime against humanity. First of all, enforced disappearance is a “serious” crime, even when it is not categorized to be a crime against humanity. When a person is prosecuted with the suspicion of having committed enforced disappearance, the person would never be prosecuted for an “ordinary crime”. Even so, it is also not suggested that it is sufficient to prosecute the suspect regardless of whether it is done under the right categorization of the crime. What is suggested is that, when it is prosecuted either as a “serious” crime or a crime against humanity at the national level, the broader, stronger and more protective definition in the International Convention which does not require a forth element of special intention of the perpetrator to put the person outside the protection of the law, should apply and the only distinction should be the contextual element of whether or not it is a part of a widespread or systematic attack. This is also in line with article 5 of the International Convention on Enforced Disappearances: “The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.”

414 J. Guerrero Orozco and M. Goetz, ‘Reparations for Victims in Colombia: Colombia’s Law on Justice and Peace’, in C. Ferstman, M. Goetz, A. Stephens (eds), Reparations for victims of genocide, war crimes and crimes against humanity (Leiden: Martinus Nijhoff Publishers, 2009) 435-458, at 454.

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criminal prosecution to be initiated. Finally, if the allegations are sufficiently evidenced and defended, prosecution will lead to the reparations phase of proceedings to be reached, which is the final phase before sentencing. Finally, prosecutions will fortunately lead to the sentencing of perpetrators and impunity will be avoided and justice will be established. Although, national courts are more accessible to the victims of serious crimes than international human rights bodies or international courts, the risk for national institutions and authorities to be corrupt or unwilling is very high. It is also likely for perpetrators to have influence on the criminal proceedings. 415 Success of a complaint, investigation and adjudication is almost solely dependent on State agents, which are by definition in the category of potential perpetrators of enforced disappearance. Police officers, prison authorities, security forces, prosecutors and judges are the main actors to decide at each phase what type of evidence, data, archive, information, witness is available to the victims. Moreover, the main justification for these actors to object to the existence of a valid suspicion of enforced disappearance will be “lack of evidence”, which is most probably paradoxically caused by these actors’ unwillingness. Even if proceedings successfully initiate, the risk of being denied access to justice continues throughout the proceedings. For example even if a victim is successful at making a complaint, the case can be rejected by the prosecutor, considering different procedural requirements at each stage of criminal proceedings. The grim truth is that neither the police nor the prosecutors represent the victims. Investigations require resources, time and energy, and in the case of enforced disappearances they might be creating political challenges and might not be for the best interest for the current government.416 Therefore, the most likely reaction of national authorities is already to object to enforced disappearance allegations.

As put down to the fact, in practice to prove enforced disappearance allegations is not easy for victims. Since national authorities do not represent the victims’ interest, national legislation should be particularly considerate of protecting victims’ right to justice. While reforms in the criminal justice sector and policy reforms to overcome practical obstacles and to eliminate institutional corruption will be long-term commitments for States to ensure full compliance with their obligations to protect victims of serious crimes, as an initial step, it is primarily through adequate and protective legislative choices States can show their willingness to protect the victims’ rights. As analysed in Chapter 4, in practice most States regulate enforced disappearance as a crime against humanity and refer to the Rome Statute in their national criminal codes, meaning that the definition in the Rome Statute apply to all cases of enforced disappearance at the national proceedings. Implementing a less protective standard of international law under the Rome Statute over a more protective one in the International Convention is a conscious choice by a States’ legislative authorities. Therefore, in adopting a definition of enforced disappearance, adding to the already high burden of proof for victims another burden of proving the element of “special intention” of perpetrators is a clear, calculated violation of due process rights of the victims of enforced disappearance. As Professor Nowak identified in his report, often there is not one person involved in the course of making a person disappear, and certain individuals involved in different stages of the crime are not always aware that the person is being transported, detained, interrogated to made disappeared eventually. In order for victims to prove the special intention they will have to have full access 415 L. Walleyn, ‘The Prosecution of International Crimes and the Role of Victims’ Lawyers’, in C. Ferstman, M. Goetz, A. Stephens (eds), Reparations for victims of genocide, war crimes and crimes against humanity (Leiden: Martinus Nijhoff Publishers, 2009) 353-367, at 359.416 L. Walleyn, ‘The Prosecution of International Crimes and the Role of Victims’ Lawyers’, in C. Ferstman, M. Goetz, A. Stephens (eds), Reparations for victims of genocide, war crimes and crimes against humanity (Leiden: Martinus Nijhoff Publishers, 2009) 353-367, at 363, 364.

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to archives, prison records, correspondence between authorities etc. Thus, to require victims to prove a special intention “to place the person outside the protection of the law”, will only enable suspects to evade justice.

The added element of special intention creates specific type of burden of proof to the victims of enforced disappearance, which has the potential of negating any protection provided to them. Obviously, not every legal shortcoming on any crime will deny victims of that crime their due process rights. However, by definition, victims of enforced disappearance are denied recognition as a person, thus the ability to be entitled to rights. Completely defenceless position of victims of enforced disappearance as such give rise to a more serious consequence of the inadequacy of the substantive law. By not amending their substantive law and restricting full protection to the victims, states are indeed violating the victims’ due process rights and limiting victims’ access to justice. As Megret calls it, this is a form of “willed inability” created by States. In most States enforced disappearance is a highly political issue, and this decision reflects each States’ willingness on how effective they want the investigations and prosecutions to be, and their genuinity of intention to provide justice to the victims of enforced disappearance. As a matter of fact, the consequence of such “willed inability” through adopting a narrow definition of enforced disappearance is an “egregious” form of violation of due process rights of victims of enforced disappearance, and leads to the final conclusion that it is relevant in the admissibility decisions of the ICC under article 17 of the Rome Statute, in line with the recent Appeals Chamber decision in the Al-Senussi case explained and analysed above.

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6. ConclusionsIt was demonstrated in chapter 2 that enforced disappearance is a current and global phenomenon that continue to occur around the world and evolving into contemporary forms. The past, recent and current incidents of enforced disappearance manifest the ‘global’ nature of this crime, and the need for a victims-oriented perspective especially at the national level of implementation, complementing existing international mechanisms to guarantee justice for past incidents, prevent future incidents and to protect victims of enforced disappearance and human rights defenders. Under current international law, ‘enforced disappearance’ is prohibited under international human rights law, international criminal law and international humanitarian law. There are contrasting views in the origin of criminal prohibition of enforced disappearance. Yet in fact, the conduct has been considered for a longer time to be unlawful under international law, since it violates a wide range of rights already established under international law.

The recent International Convention on Enforced Disappearances not only prohibits enforced disappearance but also regulate States’ obligation to criminalize enforced disappearance417 and more significantly, recognizes the right not to be

417 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, entry into force 23 December 2010, article 4: “Each State party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law”.

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subjected to enforced disappearance as a human right of its own and regulates States’ obligation to respect, protect and fulfill the right not to be subjected to enforced disappearance and its consequences.418 Furthermore, the Rome Statute of the International Criminal Court enumerates and defines enforced disappearance under articles 7(1)(i)419 and 7(2)(i)420 as a crime against humanity. Finally, enforced disappearance is recognized as a breach of IHL under rule 98 of Customary IHL. Consequently, acts pertaining to enforced disappearance can effectuate civil responsibility of States and criminal liability of individuals. International human rights law, international criminal law and international humanitarian law have different objectives and they regulate different types of liability and give definitions of enforced disappearance in different contexts. However, the phenomenon of enforced disappearances stands at the intersection of human rights law, humanitarian law and international criminal law.

Regarding two definitions of enforced disappearance under international human rights law and international criminal law, it is established that the definition provided in the International Convention is more adequate for the protection of victims right to justice. As explained in chapter 3, looking at the preparatory work and the development of international law on this regard since the adoption of the International Convention, there is consensus that the last part of the definition of enforced disappearance in the International Convention, namely “to place the person outside the protection of the law” means, victims of enforced disappearance to lose their entitlement to hold rights and to be denied recognition as a person. Taking into consideration the vulnerable position of the disappeared person and the relatives, this notion can only be an objective consequence rather than an additional element of special intention, as established under international law at the current state of law. However, this approach, which is in favor of the victims is not reflected in the national legislation of States which have ratified both the International Convention and the Rome Statute. As analyzed in chapter 4, looking at the practices of codification of the crime of enforced disappearance as a separate and autonomous crime, most States fail to provide an adequate definition in their national codes and most commonly refer to the Rome Statute and adopt the definition in article 7 of the Rome Statute. The consequence of such inconsistency in national implementation not only has the general impact of obstructing the international effort in preventing the crime of enforced disappearance and avoiding impunity for the perpetrators but has an especially egregious impact on the victims right to justice at the national level. The narrow definition of enforced disappearance create such a burden of proof for the victims of enforced disappearance that it negates all the procedural protection UN Principles and Guidelines on Impunity and Reparations and the International Convention aim to provide for the victims as explained in chapter 5.1. Finally, in chapter 5.2 the

418 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, entry into force 23 December 2010, article 1(1): “No one shall be subjected to enforced disappearance”.419 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 7(1): “For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: […] (i) Enforced disappearance of persons.”420 UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002, article 7 (2): “For the purpose of paragraph 1: […](i) ‘Enforced disappearance of persons’ means 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 of time”.

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further impact of the violation of due process principles of victims of enforced disappearance under the principle of complementarity of the Rome Statute is examined, taking into consideration the recent Al-Senussi decision of the Appeals Chamber of the ICC. The final conclusion reached is that, since the due process violation of victims through inadequate legislation is a conscious choice by the States - which has the impact of preventing genuine form of justice to be established at the national level - implementing the narrower definition in the criminal code of a State is a relevant factor in establishing States’ unwillingness to investigate and prosecute a case in an effective manner. While prioritizing their obligations under the Rome Statute, through implementing the narrower definition of enforced disappearance, States are actually risking, cases to be declared admissible at the ICC in future cases, which should be a guiding consideration in making legislative decisions between their obligations under competing standards of international law.

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M. Konforta, M. Munivrana Vajda, ‘The Principle of Complementarity in the Jurisprudence of the ICC’, 3 Zagrebačka Pravna Revija (2014) 9-27.

N. Kyriakou, ‘The International Convention For The Protection Of All Persons From Enforced Disappearance And Its Contributions To International Human Rights Law, With Specific Reference To Extraordinary Rendition Enforced

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Disappearance And International Human Rights Law’, 13 Melbourne Journal Of International Law (2012) 424-461.

P. Galella and C. Esposito, ‘Extraordinary Renditions in the Fight against Terrorism. Forced Disappearance?’, 16 Revista Internacional de Derechos Humanos (2012) 7-33, available at:http://www.surjournal.org/eng/conteudos/getArtigo16.php?artigo=16,artigo_01.htm.

P.P. Camargo, ‘Right to Judicial Protection: Amparo and Other Latin American Remedies for the Protection of Human Rights’, 3 Lawyer of the Americas (1971) 191-230.

S. McCrory, ‘The International Convention for the Protection of all Persons from Enforced Disappearance’, 7 Human Rights Law Review (2007) 545–566.

T. Scovazzi and G. Citroni, ‘The Recent Developments in International Law’, 3 Revista Internacional de Direito e Cidadania (2009) 89-111.

Unpublished Theses

S. Erener, ‘Do violations of “due process” rights constitute a ground for a finding of “unwillingness” under the “principle of complementarity” of the Rome Statute?’ (final essay for the Procedural Law of Human Rights course at Lund University, Fall 2014)

Legal Documents

CAT, Committee against Torture, General Comment No.2, CAT/C/GC/2, 24 January 2008.

CED, Committee on Enforced Disappearances, Concluding observations on the report submitted by Germany under article 29, paragraph 1, of the Convention, CED/C/DEU/CO/1, 10 April 2014.

CED, Committee on Enforced Disappearances, Concluding observations on the report submitted by Spain under article 29, paragraph 1, of the Convention, CED/C/ESP/CO/1, 12 December 2013.

CED, Committee on Enforced Disappearances, Concluding observations on the report submitted by Mexico under article 19, paragraph 1, of the Convention, CED/C/MEX/CO/1, 17 April 2014.

CED, Committee on Enforced Disappearances, Guidelines on the form and content of reports under article 29 to be submitted by States parties to the Convention, adopted at its second session, (CED/C/2), 26-30 March 2012.

CED, Committee on Enforced Disappearances, Rules of Procedures, adopted by the Committee at its first and second sessions, (CED/C/1), 22 June 2012.

CED, Committee on Enforced Disappearances, The relationship of the Committee on Enforced Disappearances with civil society actors, adopted by the Committee at its fifth session, (CED/C/3), 30 December 2013.

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http://www.surjournal.org/eng/conteudos/getArtigo16.php?artigo=16,artigo_01.htm

http://www.surjournal.org/eng/conteudos/getArtigo16.php?artigo=16,artigo_01.htm

Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907. Annex to the Convention: Regulations respecting the laws and customs of war on land - Section III : Military authority over the territory of the hostile state.

Council of Europe, Parliamentary Assembly, Enforced Disappearances, Report to the Committee on Legal Affairs and Human Rights, Rapporteur Mr. Christos Pourgourides, Doc. 10679, 19 September 2005.

Hague Convention respecting the Laws and Customs of War on Land of 18 October 1907 (Convention IV).

H. Lauterpacht, The Law of Nations and the Punishment of War Crimes, 1944 BRIT. Y.B. INT’L L. 58; Georg Schwarzenberger, The Judgment of Nuremberg, 21 TUL. L. REV. 329 (1947); Quincy Wright, The Law of the Nuremberg Trial, 41 AM. J. INT’L L. 38 (1947).

ICTR, Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, adopted by Security Council resolution 955, on 8 November 1994.

ICTY, Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by Security Council resolution 827, on 25 May 1993.

IMT, Charter of the International Military Tribunal.

IMT, The Trial of German Major War Criminals, Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany, 14 November 1945-1 October 1946.

Information Note, National Human Rights Institutions’ (NHRIs) interaction with the UN Treaty Body System, 5 April 2011.

International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984, entry into force 26 June 1987.

International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, entry into force 23 December 2010.

International Convention on the Elimination of All Forms of Racial Discrimination, Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965, entry into force 4 January 1969.

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International Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948.

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Adopted by General Assembly resolution 45/158 of 18 December 1990, entry into force 1 July 2003.

International Convention on the Rights of Persons with Disabilities, Adopted and opened for signature and ratification by General Assembly resolution A/RES/61/106 of 13 December 2006, entry into force on 3 May 2008.

International Convention on the Rights of the Child, Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990.

International Law Commission, Articles on the Responsibility of States for Internationaly Wrongful Acts (ARSIWA), Yearbook of the International Law Commission, 2001, vol. II (Part Two). Annex to the General Assembly resolution, A/56/49(Vol. I)/Corr.4.

International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 , Rules of Procedure and Evidence, IT/32.49, 22 May 2013.

Memorandum from the High Command of the Armed Forces on Prosecution of Offences Committed within the Occupied Countries Against the German State or the Occupying Powers. (Dec. 12 , 1941), translated in 7 Office of United State Chief of Counsel for he Prosecution of Axis Criminality, Nazi Conspiracy and Aggression (1946).

NMT, Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No.10, Nuernberg, October 1946-April 1949.

OAS, American Convention on Human Rights, Organization of American States (OAS), "Pact of San Jose", Costa Rica, entry into force on 18 July 1978.

OAS, American Declaration on the Rights and Duties of Man, Adopted by the Ninth International Conference of American States, Bogota, Colombia, 1948.

OAS, General Assembly Resolution, AG/RES.666 (XIII-0/83) of November 18, 1983.

OAS, General Assembly Resolution, AG/RES.742 (XIV-0/84) of November 17, 1984.

OAS, Inter-American Convention on Forced Disappearance of Persons, 33 I.L.M. 1429 (6 September 1994), entered into force 28 March 1996.

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OAU, African (Banjul) Charter on Human and Peoples' Rights, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), adopted on 27 June 1981, entered into force 21 October 1986.

Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977.

UN Commission on Human Rights, Report by Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002.

UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2003/71, 12 February 2003.


UN Commission on Human Rights, Report of the inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, E/CN.4/2005/66, 10 March 2005.


UN Commission on Human Rights, Resolution 2001/46 of 23 April 2001.

UN Commission on Human Rights, Resolution 2005/35, 19 April 2005.

UN Commission on Human Rights, Updated Set of principles for the protection and promotion of human rights through action to combat impunity, UN Doc. E/CN.4/2005/102/ Add.1, 8 February 2005.

UN Economic and Social Council (ECOSOC), Commision on Human Rights, Report prepared by Manfred Nowak, “Question of Disappearances, Special Process on Missing Persons in the Territory of the Former Yugoslavia”, U.N. Doc. E/CN.4/1996/36, 4 March 1996.

UN Economic and Social Council, Resolution 2005/30 on which was followed by General Assembly’s adoption of the Basic Principles in its resolution 60/147 on 16 December 2005.

UN General Assembly, 69th Session, A/69/56, Report of the Committee on Enforced Disappearances, Annex V, Statement on the ratione temporis element in the review of reports submitted by States Parties under the International Convention for the Protection of All Persons from Enforced Disappearance, discussed and adopted in the Committee’s 5th session.

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UN General Assembly, Elements of Crimes, International Criminal Court, U.N. Doc.PCNICC/2000/1/Add.2, (2000).

UN General Assembly, Resolution 3448 (XXX), 9 December 1975.

UN General Assembly, Resolution 3450 (XXXX), 9 December 1975 and Commission on Human Rights Resolution 4 (XXXI), 13 February 1975.

UN General Assembly, Resolution 60/147, 16 December 2005, Preamble.

UN General Assembly, Resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by UN General Assembly Resolution 60/147, 16 December 2005.

UN General Assembly, Resolution A/RES/47/133, Declaration on the Protection of All Persons from Enforced Disappearance, 18 December 1992.

UN General Assembly, Resolution No.33/173.

UN General Assembly, the Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, A/CONF.183/9, entered into force on 1 July 2002.

UN Human Rights Council, Joint Study On Global Practices In Relation To Secret Detention In The Context Of Countering Terrorism Of The Special Rapporteur On The Promotion And Protection Of Human Rights And Fundamental Freedoms While Countering Terrorism, Martin Scheinin; The Special Rapporteur On Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment, Manfred Nowak; The Working Group On Arbitrary Detention Represented By Its Vice-Chair, Shaheen Sardar Ali; And The Working Group On Enforced Or Involuntary Disappearances Represented By Its Chair, Jeremy Sarkin, A/HRC/13/42, 19 February 2010.

UN Human Rights Council, Thirteenth Session, Agenda Item 3, Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism, A/HRC/13/42, 19 February 2010.

UN Security Council, Statement of H E Mr. Pfanzelter, Permanent Representative of Austria to the United nations, the meeting of the Security Council on Justice and the Rule of Law, 4835th meeting, S/PV.4835, 30 September 2003.

Vienna Convention on the Law of Treaties, adopted on 23 May 1969, entry into force 27 January 1980.

WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/1435, 26 January 1981.

WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, General Comment on the Right to Recognition as a

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Person Before the Law in the Context of Enforced Disappearances, A/HRC/19/58/Rev.1, 2 March 2012.

WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, General Comment on the Definition of Enforced Disappearance, A/HRC/7/2, 10 January 2008.

WGEID, Report of the Working Group on Enforced or Involuntary Disappearances, Best Practices on Enforced Disappearances in Domestic Criminal Legislation, A/HRC/16/48/Add.3, 28 December 2010.

Reports and Media Sources

A guide to the International Convention for the Protection of All Persons from Enforced Disappearance, Publication of Aim for human rights in support of the campaign for ratification of the International Convention for the Protection of all Persons from Enforced Disappearances, Text: Gabriella Citroni, Dave Hardy and Patricio Rice, Editing: Henriëtte Emaar, Preface available at: http://www.apdh-argentina.org.ar/sites/default/files/u6/enforced-disappearence_0.pdf.

Amnesty International, Report 2014/2015, The State of the World’s Human Rights.

Amnesty International, The International Criminal Court: Checklist for Effective Implementation, IOR 40/11/00, July 2000.

Amnesty International, The International Criminal Court: Checklist for Effective Implementation, IOR 40/11/00, July 2000.

Approximate number of the disappeared during the WW II, see the website:http://global.britannica.com/EBchecked/topic/414948/Night-and-Fog-Decree

Associations of Families of the Disappeared, Joint Statement on the Occasion of the Adoption of the International Convention for the Protection of All Persons from Enforced Disappearances (Press Release, 23 September 2005) :http://www.khulumani.net/component/option,com_docman/task,doc_view/gid,8/Itemid,113/.

D. Adriaensens, ‘Enforced Disappearance: The Missing Persons of Iraq’, Global Research, November 29, 2010, available at:http://www.globalresearch.ca/enforced-disappearance-the-missing-persons-of-iraq/22164.

“Scandal of Sri Lanka’s disappeared”, Press Release, available at:http://www.telegraph.co.uk/news/worldnews/asia/srilanka/10387036/Scandal-of-Sri-Lankas-disappeared.html.

Human Rights Council, the 9th Session of the Universal Periodic Review, The Review of the United States of America, Report Submitted by The

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Iraqi Association Against War (IAAW) and The Indian Movement (TUPAJ AMARU), November 2010, available at:http://lib.ohchr.org/HRBodies/UPR/Documents/session9/US/JS25_JointSubmission25.pdf.

Human Rights Report, United Nations Assistance Mission for Iraq(UNAMI), 1 November - 31 December 2006, available at:http://www.ohchr.org/EN/Countries/MENARegion/Pages/UNAMIHRReports.aspx.

Human Rights Watch, Report “Torture Archipelago Arbitrary Arrests, Torture, and Enforced Disappearances in Syria’s Underground Prisons since March 2011”, ISBN: 1-56432-906-2, July 2012.

Human Rights Watch, Report “Torture Archipelago Arbitrary Arrests, Torture, and Enforced Disappearances in Syria’s Underground Prisons since March 2011”, ISBN: 1-56432-906-2, July 2012.

Human Rights Watch, News Release ‘Crimea: Attacks, ‘Disappearances’ by Illegal Forces: Rein in Units Operating Outside Law’, available at: http://www.hrw.org/news/2014/03/14/crimea-attacks-disappearances-illegal-forces.

Human Rights Watch, News Release ‘Crimea: Enforced Disappearances Crimean Tatars, Other Pro-Ukraine Figures Among the Missing’, October 7 2014, available at: http://www.hrw.org/news/2014/10/07/crimea-enforced-disappearances .

Human Rights Watch, Report ‘An Alleyway in Hell” China’s Abusive “Black Jails”, ISBN:1-56432-559-8, November 2009, available at: http://www.hrw.org/sites/default/files/reports/china1109webwcover_1.pdf.

Human Rights Watch, Report ‘An Alleyway in Hell” China’s Abusive “Black Jails”, ISBN:1-56432-559-8, November 2009, available at: http://www.hrw.org/sites/default/files/reports/china1109webwcover_1.pdf.

Human Rights Watch, Report “We Could Disappear at Any Time: Retaliation and Abuses against Chinese Petitioners”, vol.17, no.11, December 2005, available at:http://www.hrw.org/reports/2005/china1205/.

Human Rights Watch, Report ‘Legal Limbo The Uncertain Fate of Detained LTTE Suspects in Sri Lanka’, , ISBN: 1-56432-592-X, February 2010, available at:http://www.hrw.org/sites/default/files/reports/srilanka0210webwcover.pdf.

Human Rights Watch, Report ‘Legal Limbo The Uncertain Fate of Detained LTTE Suspects in Sri Lanka’, February 2010, ISBN: 1-56432-592-X, available at:http://www.hrw.org/sites/default/files/reports/srilanka0210webwcover.pdf.

Human Rights Watch, News Release ‘Yemen: Detained, Tortured, and Disappeared Yemenis Describe Illegal Detentions, Abuse by Security Forces’, May 7, 2012, available at:http://www.hrw.org/news/2012/05/07/yemen-detained-tortured-and-disappeared.

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http://www.hrw.org/reports/2005/china1205/



http://www.hrw.org/news/2014/10/07/crimea-enforced-disappearances









Human Rights Watch, World Report 2013, available at: http://www.hrw.org/world-report/2013/country-chapters/united-arab-emirates.

Human Rights Watch, Making the International Criminal Court Work: A Handbook for Implementing the Rome Statute, Vol. 13 No. 4(G), September 2001.

ICC Office of the Prosecutor (OTP), Informal Expert Paper: The Principle of Complementarity in Practice”, ICC-01/04-01/07-1008-AnxA, 30 March 2003.

Media coverage of the 500th protest of Saturday Mothers:http://www.todayszaman.com/national_500th-meeting-of-saturday-mothers-draws-large-crowd_362691.html.

Office of the High Commissioner for Human Rights, “China: UN expert body concerned about recent wave of enforced disappearances”, UN press release, April 8, 2011, available at:http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10928&LangID=E#sthash.QwzU6F4D.dpuf (accessed February 25, 2015).

Press release on the disappeared in Sri Lanka , available at: http://www.telegraph.co.uk/news/worldnews/asia/srilanka/10387036/Scandal-of-Sri-Lankas-disappeared.html.

Public letter written by Ozdil Nami, Minister of Foreign Affairs of the Turkish Republic of Northern Cyprus, which was produced in conjunction with the Washington Times Advocacy Department, available at:http://www.washingtontimes.com/news/2014/sep/30/turkish-republic-northern-cyprus-ministry-foreign-/?page=all).

Saturday Mothers on the website of the organisation Hafiza Merkezi (Memory Center) and World Policy Institute on:http://www.memorializeturkey.com/en/memorial/saturday-mothers/.

Statement made by former ICC Prosecutor Luis Moreno-Ocampo during a visit to Libya in November 2011. Video available at: http://www.aljazeera.com/news/africa/2011/11/2011112395821170909.html

Statement made at the ceremony for the solemn undertaking of the Chief Prosecutor of the International Criminal Court, Monday, 16 June 2003, The Peace Palace The Hague, The Netherlands. ICC-OTP 2003. Available at: http://www.google.se/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CCAQFjAA&url=http%3A%2F%2Fwww.iccnow.org%2Fdocuments%2FMorenoOcampo16June03.pdf&ei=aHGEVOrFCIOCzAPpx4CIDw&usg=AFQjCNGq1-Q7XGDWDYfPF1TJnTgDPuMpFQ.

“Trial of the Juntas”, in which Julia Cesar Strassera was the Chief Prosecutor, also dealt with enforced disappearances that occurred during

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http://www.aljazeera.com/news/africa/2011/11/2011112395821170909.html












the Dirty War in Argentina: http://justiceinconflict.org/2011/03/03/lost-in-the-shuffle-argentina-puts-dirty-war-leaders-on-trial/.

United Nations Security Council Resolution 1970, S/RES/1970 (2011), 26 February 26 2011, available at:http://www.un.org/News/Press/docs/2011/sc10187.doc.htm

International Justice Resource Centre, “In Guatemala, Long-Awaited Step Towards Accountability As Former Dictator Faces Genocide Charges”, http://ihrlaw.org/2012/01/23/in-guatemala-long-awaited-step-towards-accountability-as-former-dictator-faces-genocide-charges/.

International Justice Resource Centre, “Domestic prosecutions and Civil Suits”, http://www.ijrcenter.org/cases-before-national-courts/alien-tort-claims-act-litigation-u-s/.

Latino Rebels, “UN Grills Mexico Over Handling of 43 Missing Students”, http://www.latinorebels.com/2015/02/14/un-grills-mexico-over-handling-of-43-missing-students/.

Table of CasesEuropean Court of Human Rights

Cyprus v. Turkey, Application No. 25781/94, 10 May 2001. El-Masri v. The Former Yugoslav Republic of Macedonia, Application No.

39630/09, 13 December 2012. Kurt v. Turkey, Application No. 24276/94, 25 May 1998.

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http://www.un.org/News/Press/docs/2011/sc10187.doc.htm



Palić v. Bosnia and Herzegovina, Application No. 4704/04, 15 September 2011.

Timurtaş v. Turkey, Application No.23531/94, 13 June 2000. Varnava and Others v. Turkey, Application Nos.

16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, 18 September 2009.

International Criminal Tribunal for Yugoslavia

Prosecutor v. Duško Tadić, Case No. IT-94-1-A, 15 July 1999. Prosecutor v. Kupreškić, Case No. IT-95-16-T, 14 January 2000. Prosecutor v. Kvočka et al., Case No. IT-98-30/1-T, 2 November 2001.

Inter-American Court of Human Rights

Anzualdo Castro v. Peru, judgment of 22 September 2009, Ser. C No. 202 (Preliminary Objection, Merits, Reparations and Costs).

Bamaca Velasquez v. Guatemala, judgment of 25 November 2000, Ser. C No. 70 (Merits); judgment of 22 February 2002, Ser. C No. 91 (Reparations).

Blanco Romero and others v. Venezuela, judgment of 28 November 2005, Ser. C No. 137.

Cantoral Benavides v. Peru, judgment of August 18, 2000. Series C No. 69.

Castillo Petruzzi et al. v. Peru, judgment of May 30, 1999. Series C No. 52. Cesti Hurtado v. Peru. judgment of September 29, 1999. Series C No. 56. Durand and Ugarte v. Peru, judgment of August 16, 2000. Series C No. 68. Fairen Garbi and Solis Corrales v. Honduras, judgment of 26 June 1987,

Ser. C No. 2 (Preliminary Objections); judgment of 15 March 1989, Ser. C No. 6 (Merits).

Godinez Cruz v. Honduras, judgment of 26 June 1987, Ser. C No.3 (Preliminary Objections); judgment of 20 January 1989, Ser. C No. 5 (Merits); and judgment of 21 June 1989, Ser. C No. 8 (Reparations).

Goiburu and others v. Paraguay, judgment of 22 September 2006, Ser. C No. 153.

Gomez Palomino v. Peru, judgment of 22 November 2005, Ser. C No. 136 (Merits, Reparations and Costs).

Velasquez Rodriguez v. Honduras, judgment of 26 June 1987, Ser. C. No.1 (Preliminary Objections); judgment of 29 July 1988, Ser. C No.4 (Merits); judgment of 21 July 1989, Ser. C No.7 (Reparations).

International Criminal Court

Appeals Chamber, Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir", No.: ICC-02/05-01/09-OA, 3 February 2010.

Appeals Chamber, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11 OA 6, 24 July 2014.

Declaration of Judge Christine Van den Wyngaert, Pre-trial Chamber, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No: ICC-01/11-01/11-466-Anx, 11 October 2013.

Pre-trial Chamber I, Warrants of Arrest for Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, No.: ICC-01/11, 27 June 2011.

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Pre-trial Chamber, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No: ICC-01/11-01/11-466-Red, 11 October 2013.

Pre-trial Chamber, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No:ICC-01/11-01/11-307-Red2, 2 April 2013.

Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, No.: ICC-01/11, 16 May 2011.

Human Rights Committee

Baboeram-Adhin and others v. Suriname, Communication No. 146/1983, 4 April 1985.

Bleier v. Uruguay, Communication No. 30/1978, 29 March 1982. Bleier v. Uruguay, Communication No. 30/1978, 29 March 1982. Bousroual v. Algeria, Communication No. 992/2001, 24 April 2006. Celis Laureano v. Peru, Communication No. 540/1993, 25 March 1996. Conteris v. Uruguay, Communication No. 139/1983, 17 July 1985. El-Megreisi v. Libyan Arab Jamahiriya, Communication No. 440/1990, 23

March 1994. Graciela Ato del Avellanal v. Peru, Communication No. 202/1986, 31

October 1988. Katombe L. Tshishimbi v. Zaire, Communication No. 542/1993, 26 March

1996. Messaouda Kimouche v. Algeria, Communication No. 1328/2004, 10 July

2007. Mojica v. Dominican Republic, Communication No. 449/1991, 10 August

1994. Quinteros v. Uruguay, Communication No. 107/1981, 21 July 1982. Tahar Mohamed Aboufaied v. Libya, Individual Opinion (concerring) of

the Committee member Sir Nigel Rodley, Communication No. 1782/2008, 19 June 2012.

Yurich v. Chile, Individual (dissenting) Opinions of Committee members Ms. Christine Chanet, Mr. Rajsoomer Lallah, Mr. Michael O’Flaherty, Ms. Elisabeth Palm and Mr. Hipolito Solari-Yrigoyen, Communication No. 1078/2002, 24 April 2005.

Zohra Madoui v. Algeria, Communication No. 1495/2006, 28 October 2009.

Domestic Cases

Campo de Mayo Trials (1), Federal Chamber of Criminal Appeals Argentina, Case Nos. 2023, 2031, 2034 and 2043, 7 December 2012.

Campo de Mayo Trials (2), Federal Chamber of Criminal Appeals Argentina, Case Nos. 2046 and 2208, 7 December 2012.

Campo de Mayo Trials (3), Federal Criminal Oral Tribunal No.1 of San Martín, Case No. 2047, 12 March 2013

Hospital Posadas Case, Federal Chamber of Criminal Appeals Argentina, Case No. 1696/1742, 28 November 2012.

National Appeals Court (Criminal Division) for the Federal District of Buenos Aires, Case against, Jorge Rafael Videla, Agosti, Emilio Eduardo Massera, Viola, Lambruschini, Galtieri, Lami Dozo, Anaya, 9 December 1985.

Plan Sistematico Case, Federal Criminal Oral Tribunal No. 6 of Buenos Aires, Argentina, Case No. 1351, 17 September 2012.

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Simon, Julio Héctor et al., Supreme Court of Argentina, Case No. 17.768, 14 June 2005.

United States District Court, D. Massachusetts, 12 April 1995, Case Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass 1995).

Bosnian War Crimes Chamber

Prosecutor v. Damjanović, Case No. X-KR-05/51, First Instance Verdict (Dec. 15, 2006).

Prosecutor v. Damjanović, Case No. X-KR-05/51, Second Instance Verdict (June 13, 2007).

Prosecutor v. Rašević & Todović, Case No. X-KR/06/275, First Instance Verdict (Feb. 28, 2008).

Prosecutor v. Šimšić, Case No. X-KR-05/04, First Instance Verdict (July 11, 2006).

Prosecutor v. Šimšić, Case No. X-KRŽ-05/04, Second Instance Verdict (Aug. 7, 2007).

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