Human Rights Law Must Recognize Short-Term Enforced Disappearances

In our recent report on enforced disappearances in Venezuela, Robert F. Kennedy Human Rights and partner organization Foro Penal focused on Venezuelan security forces’ practice of disappearing victims for, on average, about five days and then either presenting them to the judicial authorities or releasing them without presentation.

Enforced disappearances, we noted in the report, were short-term and were largely the result of three circumstances: the regime wanted the person disappeared, security forces wanted to hide evidence of torture, or the authorities just couldn’t process the person within the constitutionally mandated 48 hours but, at the same time, would not allow him or her to contact anybody and would not confirm or provide information about the detention. No matter the reason, these all count as enforced disappearances. But the difference between these cases and what enforced disappearances traditionally have looked like - people vanishing for years and almost never returning - highlights the need to continue developing international human rights law on the definition in order to better ensure accountability. The questions of whether an enforced disappearance must include an intent to place the victim outside the protection of the law, and whether there is a minimum amount of time for which the victim must remain disappeared, are still unresolved. Discrepancies between the Rome Statute and other international instruments could hinder accountability in terms of international criminal law. Moreover, the decision of whether a crime counts as an enforced disappearance has large ramifications on who is considered a victim of the crime - enforced disappearances impact more people than the person disappeared, and families as well as the direct victim are entitled to reparations.

Enforced disappearances have taken place in a wide range of countries and circumstances, from civil war and internal conflict to silencing dissent in peacetime. The most well-known examples have come from repressive regimes in Latin America during the 1960s and 1970s, particularly in the context of “Operation Condor” - a secret pact between the dictatorships of the region in the 1970s to murder and disappear their opponents on the political left.

At least 30,000 people were abducted in Argentina alone, many of whom were never seen again. It’s difficult to know for certain what the real numbers are - which, of course was the goal. Enforced disappearance was, and is, used as a means to obscure a crime, thereby avoiding accountability. Traditionally, disappearances have lasted for years, and death was a virtual certainty - almost none of the victims from this period in Latin America ever returned home.

The main instruments recognizing enforced disappearances as a crime - the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) and the Inter-American Convention on The Forced Disappearance of Persons (IACFDP) - were drafted after this period came to a close, but other, older, instruments, like the International Covenant on Civil and Political Rights (ICCPR) and the Rome Statute, prohibit enforced disappearance as well. All of these legal instruments agree that enforced disappearance contains three main elements: the deprivation of liberty by either state agents or people acting with the acquiescence of the state, along with the refusal to either acknowledge the detention or the fate of the disappeared person.

Yet, there are also some important discrepancies. Under the Rome Statute, “‘[e]nforced 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” (Art. 7.2) Here, it would seem that even if the enforced disappearances are conducted in a systematic and widespread manner, but for very short periods of time, this practice would not necessarily fall under the jurisdiction of the International Criminal Court (ICC). The Rome Statute does, however, also cast a wider net in terms of who can be held responsible - unlike other instruments, it is enforceable against political groups, even when they do not act on behalf of, or with the support or acquiescence of, the State (see the WGEID’s general comment, p. 16).

In contrast, the ICPPED and the IACFDP have no requirement for a proven intent to place someone outside the protection of the law. Thus, detainees who have simply not been processed by an overwhelmed carceral system, provided that they have also not been allowed to contact relatives or a lawyer and their whereabouts are unconfirmed, are still considered forcibly disappeared. The Human Rights Committee (the treaty body for the ICCPR), the Working Group on Enforced or Involuntary Disappearances (WGEID), the Committee on Enforced Disappearances (CED), and the Inter-American Court have followed this interpretation.

Treaty bodies and courts also have yet to align their definitions with respect to the question of how long a person needs to be held in secret and incommunicado for the crime to constitute an enforced disappearance. This discrepancy matters because the nature of enforced disappearances has been changing - short-term enforced disappearances are on the rise, especially in the context of counter-terrorism operations. In this sense, it is particularly important to resolve the question of the temporal requirement in the Rome Statute - while the ICCPED, IACFDP, American Convention and Declaration, and ICCPR all function to ensure state accountability, the Rome Statute authorizes charges against individuals. The recognition of short-term enforced disappearances will ensure the accountability of those responsible under international criminal law.

The resolution to the temporal question is still developing in international human rights law. The CED and the WGEID issued a joint statement clarifying that “no time is too short for an enforced disappearance to occur.” The CED later relied on this statement in its decision in Yrusta v. Argentina, holding that a disappearance of “more than seven days” counted (pars. 10.2-10.4).

The Human Rights Committee (HRC) has steadily moved away from the temporal requirement. It relied on the Rome Statute definition of “enforced disappearance” in a pair of 2007 cases, Grioua v. Algeria (par. 7.2) and Kimouche v. Algeria (par. 7.2). That same year, however, the WGEID issued a general comment on the definition of enforced disappearance in which it chose, after noting the different instruments defining the crime, to construe the definition given in the Declaration for the protection of all persons against enforced disappearances rather than the Rome Statute because it was the “most conducive to the protection of all persons from enforced disappearance” (p. 16). In this definition, “enforced disappearances occur when persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law” (p. 16). It seems that the HRC took note. The next year, in Benaziza v. Algeria, the HRC referred instead to the definition of “enforced disappearance” in the ICPPED (par. 9.3), and only referenced the Rome Statute in a footnote (par. 9.3, fn. 15). By 2015, in Katwal v. Nepal, the HRC stated - without referencing any instrument at all - that “deprivation of liberty, followed by a period of refusal by the authorities to acknowledge that deprivation and by the concealment of [the victim’s] fate” constituted an enforced disappearance (par. 11.2). Later that year, in Tharu v. Nepal, the HRC maintained that approach (par. 10.9), prompting Committee member Olivier de Frouville to write in his concurring opinion that the Committee had in fact amended its jurisprudence to give up reference to the Rome Statute (pars. 2, 6).

Finally, the European Court of Human Rights has held in El-Masri v. The Former Yugoslav Republic of Macedonia that holding the victim in a blacksite cell for over four months as part of the CIA’s extraordinary renditions program amounted to an enforced disappearance (par. 240). The situation in Venezuela is actually one of the factors driving the continued development of a resolution - the WGEID expressed concern over short-term enforced disappearances being used against peaceful protesters and political opponents of the regime in Venezuela in 2019 (par. 156).

Whether an arbitrary detention can also be considered an enforced disappearance or not also determines who is considered a victim - and, as a result, who is entitled to reparation. Both the WGEID and the Inter-American system have recognized that the impact of enforced disappearances does not stop with the disappeared person, but rather also harms the family. The Working Group has observed that economic and social marginalization of the family - particularly women - often occur as a result of enforced disappearance, because of frequent stigmatization over failing to protect their children, and in situations where the person disappeared remains so for long amounts of time and is also the breadwinner in the household, resulting in a severe loss of resources for the family’s survival. The Inter-American Court takes this recognition a step further, asserting (par. 184) that keeping the family in ignorance as to the fate of their loved one amounts to torture. As such, the family is also entitled to reparations for an enforced disappearance. This is a particularly critical recognition for women, who not only suffer disproportionate economic and social harms as described above, but also are overwhelmingly those driving the search for the disappeared.

It’s our hope that the situation of political detainees in Venezuela can push developing international human rights law towards greater and more consistent recognition of short-term enforced disappearances, thereby taking another step towards ensuring accountability for both the states and individuals responsible and justice for the disappeared and their families.

For more information on the development of a definition for enforced disappearance in international law, check out this Opinio Juris blog post by Priya Pillay.

In our recent report on enforced disappearances in Venezuela, Robert F. Kennedy Human Rights and partner organization Foro Penal focused on Venezuelan security forces’ practice of disappearing victims for, on average, about five days and then either presenting them to the judicial authorities or releasing them without presentation.

Enforced disappearances, we noted in the report, were short-term and were largely the result of three circumstances: the regime wanted the person disappeared, security forces wanted to hide evidence of torture, or the authorities just couldn’t process the person within the constitutionally mandated 48 hours but, at the same time, would not allow him or her to contact anybody and would not confirm or provide information about the detention. No matter the reason, these all count as enforced disappearances. But the difference between these cases and what enforced disappearances traditionally have looked like - people vanishing for years and almost never returning - highlights the need to continue developing international human rights law on the definition in order to better ensure accountability. The questions of whether an enforced disappearance must include an intent to place the victim outside the protection of the law, and whether there is a minimum amount of time for which the victim must remain disappeared, are still unresolved. Discrepancies between the Rome Statute and other international instruments could hinder accountability in terms of international criminal law. Moreover, the decision of whether a crime counts as an enforced disappearance has large ramifications on who is considered a victim of the crime - enforced disappearances impact more people than the person disappeared, and families as well as the direct victim are entitled to reparations.

Enforced disappearances have taken place in a wide range of countries and circumstances, from civil war and internal conflict to silencing dissent in peacetime. The most well-known examples have come from repressive regimes in Latin America during the 1960s and 1970s, particularly in the context of “Operation Condor” - a secret pact between the dictatorships of the region in the 1970s to murder and disappear their opponents on the political left.

At least 30,000 people were abducted in Argentina alone, many of whom were never seen again. It’s difficult to know for certain what the real numbers are - which, of course was the goal. Enforced disappearance was, and is, used as a means to obscure a crime, thereby avoiding accountability. Traditionally, disappearances have lasted for years, and death was a virtual certainty - almost none of the victims from this period in Latin America ever returned home.

The main instruments recognizing enforced disappearances as a crime - the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) and the Inter-American Convention on The Forced Disappearance of Persons (IACFDP) - were drafted after this period came to a close, but other, older, instruments, like the International Covenant on Civil and Political Rights (ICCPR) and the Rome Statute, prohibit enforced disappearance as well. All of these legal instruments agree that enforced disappearance contains three main elements: the deprivation of liberty by either state agents or people acting with the acquiescence of the state, along with the refusal to either acknowledge the detention or the fate of the disappeared person.

Yet, there are also some important discrepancies. Under the Rome Statute, “‘[e]nforced 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” (Art. 7.2) Here, it would seem that even if the enforced disappearances are conducted in a systematic and widespread manner, but for very short periods of time, this practice would not necessarily fall under the jurisdiction of the International Criminal Court (ICC). The Rome Statute does, however, also cast a wider net in terms of who can be held responsible - unlike other instruments, it is enforceable against political groups, even when they do not act on behalf of, or with the support or acquiescence of, the State (see the WGEID’s general comment, p. 16).

In contrast, the ICPPED and the IACFDP have no requirement for a proven intent to place someone outside the protection of the law. Thus, detainees who have simply not been processed by an overwhelmed carceral system, provided that they have also not been allowed to contact relatives or a lawyer and their whereabouts are unconfirmed, are still considered forcibly disappeared. The Human Rights Committee (the treaty body for the ICCPR), the Working Group on Enforced or Involuntary Disappearances (WGEID), the Committee on Enforced Disappearances (CED), and the Inter-American Court have followed this interpretation.

Treaty bodies and courts also have yet to align their definitions with respect to the question of how long a person needs to be held in secret and incommunicado for the crime to constitute an enforced disappearance. This discrepancy matters because the nature of enforced disappearances has been changing - short-term enforced disappearances are on the rise, especially in the context of counter-terrorism operations. In this sense, it is particularly important to resolve the question of the temporal requirement in the Rome Statute - while the ICCPED, IACFDP, American Convention and Declaration, and ICCPR all function to ensure state accountability, the Rome Statute authorizes charges against individuals. The recognition of short-term enforced disappearances will ensure the accountability of those responsible under international criminal law.

The resolution to the temporal question is still developing in international human rights law. The CED and the WGEID issued a joint statement clarifying that “no time is too short for an enforced disappearance to occur.” The CED later relied on this statement in its decision in Yrusta v. Argentina, holding that a disappearance of “more than seven days” counted (pars. 10.2-10.4).

The Human Rights Committee (HRC) has steadily moved away from the temporal requirement. It relied on the Rome Statute definition of “enforced disappearance” in a pair of 2007 cases, Grioua v. Algeria (par. 7.2) and Kimouche v. Algeria (par. 7.2). That same year, however, the WGEID issued a general comment on the definition of enforced disappearance in which it chose, after noting the different instruments defining the crime, to construe the definition given in the Declaration for the protection of all persons against enforced disappearances rather than the Rome Statute because it was the “most conducive to the protection of all persons from enforced disappearance” (p. 16). In this definition, “enforced disappearances occur when persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law” (p. 16). It seems that the HRC took note. The next year, in Benaziza v. Algeria, the HRC referred instead to the definition of “enforced disappearance” in the ICPPED (par. 9.3), and only referenced the Rome Statute in a footnote (par. 9.3, fn. 15). By 2015, in Katwal v. Nepal, the HRC stated - without referencing any instrument at all - that “deprivation of liberty, followed by a period of refusal by the authorities to acknowledge that deprivation and by the concealment of [the victim’s] fate” constituted an enforced disappearance (par. 11.2). Later that year, in Tharu v. Nepal, the HRC maintained that approach (par. 10.9), prompting Committee member Olivier de Frouville to write in his concurring opinion that the Committee had in fact amended its jurisprudence to give up reference to the Rome Statute (pars. 2, 6).

Finally, the European Court of Human Rights has held in El-Masri v. The Former Yugoslav Republic of Macedonia that holding the victim in a blacksite cell for over four months as part of the CIA’s extraordinary renditions program amounted to an enforced disappearance (par. 240). The situation in Venezuela is actually one of the factors driving the continued development of a resolution - the WGEID expressed concern over short-term enforced disappearances being used against peaceful protesters and political opponents of the regime in Venezuela in 2019 (par. 156).

Whether an arbitrary detention can also be considered an enforced disappearance or not also determines who is considered a victim - and, as a result, who is entitled to reparation. Both the WGEID and the Inter-American system have recognized that the impact of enforced disappearances does not stop with the disappeared person, but rather also harms the family. The Working Group has observed that economic and social marginalization of the family - particularly women - often occur as a result of enforced disappearance, because of frequent stigmatization over failing to protect their children, and in situations where the person disappeared remains so for long amounts of time and is also the breadwinner in the household, resulting in a severe loss of resources for the family’s survival. The Inter-American Court takes this recognition a step further, asserting (par. 184) that keeping the family in ignorance as to the fate of their loved one amounts to torture. As such, the family is also entitled to reparations for an enforced disappearance. This is a particularly critical recognition for women, who not only suffer disproportionate economic and social harms as described above, but also are overwhelmingly those driving the search for the disappeared.

It’s our hope that the situation of political detainees in Venezuela can push developing international human rights law towards greater and more consistent recognition of short-term enforced disappearances, thereby taking another step towards ensuring accountability for both the states and individuals responsible and justice for the disappeared and their families.

For more information on the development of a definition for enforced disappearance in international law, check out this Opinio Juris blog post by Priya Pillay.