Practice Relating to Rule 98. Enforced Disappearance
Section A. General
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Inter-American Convention on the Forced Disappearance of Persons
The preamble to the 1994 Inter-American Convention on the Forced Disappearance of Persons states that the “forced disappearance of persons is an affront to the conscience of the Hemisphere and a grave and abominable offence against the inherent dignity of the human being”. The Convention also states: “forced disappearance of persons violates numerous non-derogable and essential human rights” and reaffirms that the systematic practice of disappearance “constitutes a crime against humanity”. 
Inter-American Convention on the Forced Disappearance of Persons, adopted by the Twenty-fourth Regular Session of the OAS General Assembly, Res. 1256 (XXIV-O/94), Belém do Pará, 9 June 1994, preamble.

ICC Statute
Article 7(1)(i) of the 1998 ICC Statute provides that “[e]nforced disappearance of persons” constitutes a crime against humanity. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 7(1)(i).
Article 7(2)(i) of the Statute defines enforced disappearance as:
the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 7(2)(i).

Convention on Enforced Disappearance
The 2006 Convention on Enforced Disappearance provides:
Recalling … relevant international instruments in the fields of human rights, humanitarian law and international criminal law,
Also recalling the Declaration on the Protection of All Persons from Enforced Disappearance adopted by the General Assembly of the United Nations in its resolution 47/133 of 18 December 1992,
Aware of the extreme seriousness of enforced disappearance, which constitutes a crime and, in certain circumstances defined in international law, a crime against humanity,

Considering the right of any person not to be subjected to enforced disappearance, …,

Have agreed on the following articles:
Article 1
1. No one shall be subjected to enforced disappearance.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.
Article 2
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.

Article 4
Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.
Article 5
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.

Article 7
1. Each State Party shall make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness. 
International Convention for the Protection of all Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 61/177, 20 December 2006, Annex, Preamble and Articles 1–2, 4-5 and 7(1).

Kampala Convention
Article 9(1)(c) of the 2009 Kampala Convention states: “State Parties shall protect the rights of internally displaced persons regardless of the cause of displacement by refraining from, and preventing, the following acts, amongst others: … enforced disappearance”. 
African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted in Kampala, Uganda, 23 October 2009, Article 9(1)(c).

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UN Declaration on Enforced Disappearance
Article 1 of the 1992 UN Declaration on Enforced Disappearance states:
1. Any act of enforced disappearance is an offence to human dignity. It is condemned as a denial of the purposes of the Charter of the UN and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field.
2. Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life. 
Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 47/133, 18 December 1992, Article 1.

Comprehensive Agreement on Human Rights in Guatemala
Under Section III(2) of the 1994 Comprehensive Agreement on Human Rights in Guatemala, the Government of Guatemala undertook to modify the Penal Code so that “enforced or involuntary disappearances … may be characterized as crimes of particular gravity and punished as such”. 
Comprehensive Agreement on Human Rights between the Government of the Republic of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca, Mexico City, 29 March 1994, annexed to Letter dated 8 April 1994 from the UN Secretary-General to the President of the UN General Assembly and to the President of the UN Security Council, UN Doc. A/48/928-S/1994/448, 19 April 1994, Annex I, Section III(2).

ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Under Article 18(i) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, “[f]orced disappearance of persons” is a crime against humanity. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 18(i).

Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 2(4) of Part III of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines provides that the Agreement seeks to protect and promote the right to life, especially against involuntary disappearances. 
Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, The Hague, 16 March 1998, Part III, Article 2(4).

UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including crimes against humanity. According to Section 5(1)(i), “[e]nforced disappearance of persons” constitutes a crime against humanity. 
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 5(1)(i).
Section 6(2)(i) of the Regulation defines enforced disappearance as:
the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 6(2)(i).

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Colombia
Colombia’s Basic Military Manual (1995) provides: “It is prohibited to deprive [the civilian population] of its liberty (sequestration, enforced disappearances).” 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 30.

Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
I. Grave violations

They are enumerated by the Geneva Conventions and the Additional Protocols, as well as by the Ivorian Penal Code.
They are:

- systematic practice of enforced disappearances. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 29.

El Salvador
El Salvador’s Human Rights Charter of the Armed Forces provides that “detention-disappearance” is a violation of human rights. 
El Salvador, Derechos Humanos. Decálogo de la Fuerza Armada de El Salvador, Ministerio de la Defensa Nacional, Departamento de Derecho Humanitario, p. 18.

Indonesia
Indonesia’s Directive on Human Rights (1995) in Irian Jaya and Maluku instructs soldiers: “Do not be involved in or permit the disappearance of people.” 
Indonesia, Directive concerning Human Rights, issued by the Commander of the Regional Military Command of Irian Jaya and Maluku, 1995, § 8.

Peru
According to Peru’s Human Rights Charter of the Security Forces (1991), causing the disappearance of a detainee is one of the gravest violations of human rights. 
Peru, Derechos Humanos: Decálogo de las Fuerzas del Orden, Comando Conjunto de las Fuerzas Armadas, Ministerio de Defensa, Ejército Peruano, 1991, p. 19.

Peru’s IHL and Human Rights Manual (2010), in a section on the relationship between IHL and human rights law, states:
There are … principles common to the [1949] Geneva Conventions and human rights law which represent a minimum level of protection to which every human person is entitled … [including] [r]espect for … physical and mental integrity …
Regarding these fundamental guarantees there is no exception whatsoever and they are binding both in times of peace and in times of armed conflict. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 26, pp. 41–42.

The prohibition of any arbitrary deprivation of life is a fundamental principle which protects life in various circumstances, … [including] … [e]nforced or involuntary disappearance which [i]s considered as one of the most serious human rights violations and has been qualified by the human rights commission as one of the practices that violate, to a certain degree, all fundamental rights of the individual. The Human Rights Committee considers [enforced or involuntary disappearance] as violating the right to personal liberty and the right to humane treatment. Lastly, the Inter-American Commission [on Human Rights] qualifies [enforced or involuntary disappearance] as a cruel and inhuman process, … as arbitrary deprivation of liberty of a person [and] as a serious threat to the person’s integrity. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 32(a), pp. 47–48.

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Armenia
Under Armenia’s Penal Code (2003), “kidnapping followed by disappearance” constitutes a crime against humanity. 
Armenia, Penal Code, 2003, Article 392.

Australia
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the crimes against humanity defined in the 1998 ICC Statute, including “enforced disappearances of persons”. 
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.21.

Azerbaijan
Azerbaijan’s Criminal Code (1999), in a provision entitled “Enforced disappearance of persons” provides for the punishment of “the arrest, detention or abduction of persons with the authorization, support or acquiescence of a State or a political organization, followed by a refusal to acknowledge that deprivation of liberty or to give information on the fate or whereabouts of those persons”. 
Azerbaijan, Criminal Code, 1999, Article 110.

Belarus
Belarus’s Criminal Code (1999) provides that the abduction followed by the disappearance of individuals is a crime against the security of mankind. 
Belarus, Criminal Code, 1999, Article 128.

Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
A crime against humanity, as defined below, whether committed in time of peace or in time of war, constitutes a crime under international law and shall be punished in accordance with the provisions of the present title. In accordance with the Statute of the International Criminal Court, 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:

9. enforced disappearance of persons. 
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 ter, § 9.

Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
A crime against humanity, as defined below, whether committed in time of peace or in time of war, constitutes a crime under international law and shall be punished in accordance with the provisions of the present title. In accordance with the Statute of the International Criminal Court, 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:

9. enforced disappearance of persons. 
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 bis, § 9.

Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) criminalizes the following as crimes against humanity:
(1) Whoever, as part of a widespread or systematic attack directed against any civilian population, with knowledge of such an attack, perpetrates any of the following acts:

i) Enforced disappearance of persons.

(2) For the purpose of paragraph 1 of this Article, the following terms shall have the following meanings:

h) 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 an aim of removing them from the protection of the law for a prolonged period of time. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 172(1)(i) and (2)(h).
[emphasis in original]
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) lists “enforced disappearance of persons” as a crime against humanity “when committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack.” 
Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 3(i).

Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the crimes against humanity defined in Article 7 of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).

Congo
Under the Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998), “enforced disappearances”, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, are crimes against humanity. 
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 6.

Croatia
Croatia’s Criminal Code (1997), as amended to 2006, states that a crime against humanity is committed by whoever
orders the arrest, detention or kidnapping of some persons in the name of and with the permission, support or approval of a State or political organization and subsequently does not admit that these persons have been deprived of their liberty or withholds information about the fate of such persons or the place where they are kept. 
Croatia, Criminal Code, 1997, as amended to June 2006, Article 157a.

Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).

El Salvador
El Salvador’s Penal Code (1997) provides for the punishment of the crime of enforced disappearance. 
El Salvador, Penal Code, 1997, Article 364.

Ethiopia
Ethiopia’s Criminal Code (2004) states:
Article 270.- War Crimes against the Civilian Population.
Whoever, in time of war, armed conflict or occupation organizes, orders or engages in, against the civilian population and in violation of the rules of public international law and of international humanitarian conventions:

(l) … causing to disappear … persons who, before the beginning of hostilities, were considered as stateless persons or refugees under the relevant international instruments or under the national legislation of the State of refuge or State of residence …

is punishable with rigorous imprisonment from five years to twenty-five years, or, in more serious cases, with life imprisonment or death. 
Ethiopia, Criminal Code, 2004, Article 270.

France
Under France’s Penal Code (1994), abduction of persons followed by their disappearance is a crime against humanity. 
France, Penal Code, 1994, Article 212(1).

France’s Penal Code (1994), as amended in 2010, states in its section on war crimes common to international and non-international armed conflicts:
[A]bducting or kidnapping … a person protected by the international law of armed conflict pursuant to the laws and customs of war and to international humanitarian law, is an aggravated offence. 
France, Penal Code, 1994, as amended in 2010, Article 461-2.

Germany
Germany’s Law Introducing the International Crimes Code (2002), under the heading “Crimes against humanity”, punishes anyone who:
causes a person’s enforced disappearance, with the intention of removing him or her from the protection of the law for a prolonged period of time,
(a) by abducting that person on behalf of or with the approval of a State or political organization, or by otherwise severely depriving such person of his or her physical liberty, followed by a failure to give immediately truthful information, upon inquiry, of that person’s fate and whereabouts, or
(b) by refusing, on behalf of a State or political organization or in contravention of a legal duty, to give information immediately on the fate and whereabouts of the person deprived of his or her physical liberty under the circumstances referred to under letter (a) above, or by giving false information thereon.  
Germany, Law Introducing the International Crimes Code, 2002, Article 1, § 7(1)(7).

Mali
Under Mali’s Penal Code (2001), “enforced disappearance” is a crime against humanity. 
Mali, Penal Code, 2001, Article 29(i).

Nepal
Nepal’s Ordinance on the Disappearance of Persons (2009) states:
2. Definitions:
Unless the subject or context otherwise requires, in this Ordinance:
(a) “Disappearance of Persons” means the following:
(1) The act of not allowing the person [who has been] arrested, taken into custody or taken control of in whatever way by a person or a security official authorized to arrest, investigate or prosecute in accordance with [the] law or to implement the law to meet the concerned persons even after the expiry of the stipulated time to [bring] the arrested person before the person[s] authorized to look into such cases in accordance with the existing laws or not providing information on the fate or whereabouts [of] such person;
(2) The act of not giving information to the concerned persons on the fate or whereabouts of the [arrested or kidnapped] person …; taking [somebody] … hostage or control[ling an individual] in the name of an organization or an organized or unorganized group; or depriving [someone] of his/her personal liberty in whatever way or not [providing] the reason [for] such deprivation [of liberty] even after the expiry of twenty-four hours of such control or deprivation [of liberty].

3. Not to Carry Out or [Instigate] to Carry Out the Act of Disappearance of a Person:
(1) No one shall commit or [instigate] to commit an act of disappearance.
(2) No one shall be an accomplice in an act of disappearance … or assist in such an act in any manner. 
Nepal, Ordinance on the Disappearance of Persons, 2009, Articles 2(a) and 3.

Netherlands
Under the International Crimes Act (2003) of the Netherlands, “enforced disappearance of persons” is a crime against humanity, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. 
Netherlands, International Crimes Act, 2003, Article 4(1)(i).

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. 
Netherlands, International Crimes Act, 2003, Article 4(2)(d).

Niger
According to Niger’s Penal Code (1961), as amended in 2003, “abduction of persons followed by their disappearance” is a crime against humanity. 
Niger, Penal Code, 1961, as amended in 2003, Article 208.2.

New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), crimes against humanity include the crimes defined in Article 7(1)(i) and (2)(i) of the 1998 ICC Statute. 
New Zealand, International Crimes and ICC Act, 2000, Section 10(2).

Paraguay
Paraguay’s Penal Code (1997) provides for the punishment of the crime of enforced disappearance. 
Paraguay, Penal Code, 1997, Article 236.

Peru
Peru’s Penal Code (1998) punishes the carrying out of acts of enforced disappearance perpetrated by government agents. 
Peru, Penal Code, 1988, Article 320.

Peru’s Regulations to the Law on Internal Displacement (2005) states:
Internally displaced persons who return to their places of habitual residence or who have resettled in another part of the country have a right to:

e) be protected against … enforced disappearance; as well as any threats and incitement to commit … [enforced disappearance]. 
Peru, Regulations to the Law on Internal Displacement, 2005, Article 6(e).

Republic of Korea
The Republic of Korea’s ICC Act (2007) provides for the punishment of crimes listed in the 1998 ICC Statute, including the following as a crime against humanity:
Enforced disappearance of a person, by any of the following acts with the authorization, support or acquiescence of a State or a political organization with the intent of removing him or her from the protection of the law for a prolonged period of time.
A. Arresting, detaining, abducting (within this Subparagraph hereinafter referred to as “arrest, etc.”) that person, followed by a refusal to give information on that person’s arrest, etc., identity, fate, and whereabouts or by giving false information thereon;
B. Refusing to give information or giving false information referred to in Subparagraph A in violation of a legal duty. 
Republic of Korea, ICC Act, 2007, Article 9(2)(8).

Senegal
Senegal’s Penal Code (1965), as amended in 2007, lists “the abduction of persons followed by their disappearance” as a crime against humanity “when committed on the occasion of a widespread or systematic attack against any civilian population”. 
Senegal, Penal Code, 1965, as amended in 2007, Article 431-2(6).

South Africa
South Africa’s ICC Act (2002) reproduces the crimes against humanity listed in the 1998 ICC Statute, including the “enforced disappearance of persons”. 
South Africa, ICC Act, 2002, Schedule 1, Part 2, § 1(i).

Sudan
Sudan’s Armed Forces Act (2007) provides:
(2) Subject to provisions of the Criminal Act of 1991, shall be punished with imprisonment for a term not exceeding ten years, whoever commits, within the framework of a methodical direct and widespread attack, directed against civilians, any of the following acts:

(c) … forceful concealment of any person. 
Sudan, Armed Forces Act, 2007, Article 151(2).

United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit a crime against humanity as defined in Article 7(1)(i) and (2)(i) of the 1998 ICC Statute. 
United Kingdom, ICC Act, 2001, Sections 50(1) and 51(1) (England and Wales) and Section 58(1) (Northern Ireland).

Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
A person who commits any of the following acts with the intention to destroy in whole or in part a national, ethnic, religious, political, or trade union group or a group with their own identity based on gender, sexual orientation, cultural or social reasons, age, disability or health, is punished with fifteen to thirty years’ imprisonment:

B) … enforced disappearance … of one or more members of the group. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 16(B).

21.1. Any person who is a State agent or who is not a State agent but acts with the authority, support or acquiescence of one or more State agents and who in any way and for any reason proceeds to deprive a person of their liberty, followed by the refusal to give information on the deprivation of liberty or the whereabouts or fate of the person deprived of their liberty, or who omits or refuses to give information about the deprivation of liberty of a disappeared person, their whereabouts or fate, is punished with twenty years’ imprisonment.
21.2. The crime of enforced disappearance must be considered as a permanent crime while the fate or whereabouts of the victim remain unknown. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 21.1–21.2.

Venezuela
Venezuela’s Law on the State of Emergency (2001), which includes situations of internal and international armed conflict, states:
In accordance with Articles 339 of the Constitution of the Bolivarian Republic of Venezuela, Article 4(2) of the [1966] International Covenant on Civil and Political Rights and Article 27(2) of the [1969] American Convention on Human Rights, the guarantee to the [following] rights must not be restricted:

6. The … prohibition of the practice of enforced disappearance of persons. 
Venezuela, Law on the State of Emergency, 2001, Article 7(6).

Venezuela’s Penal Code (2005) states:
Any civilian or military public authority or any other person at the service of the State that unlawfully deprives another person of his or her liberty and refuses to acknowledge the detention or to provide information on the fate or situation of the disappeared person, thereby impeding the exercise of the person’s rights and constitutional and legal guarantees, shall be punished with fifteen to twenty-five years’ imprisonment.
The same penalty shall apply to members of groups or associations with terrorist, insurgent or subversive aims who forcefully make a person disappear by means of abduction or kidnapping. Whoever acts as an accomplice or covers up the crime shall be punished with twelve to eighteen years’ imprisonment.
The crime hereby established shall be considered to be continuous as long as the fate or location of the victim is not established.
No order or instruction from a civilian, military or other public authority may be invoked as justification for enforced disappearances.
Prosecution and penalties imposed for this crime shall not fall under statutes of limitations and those responsible for its commission shall not be subject to any benefit, including pardons or amnesties.
If a person who, having participated in the commission of an enforced disappearance, assists in the person’s reappearance or voluntarily provides information that facilitates the clarification of enforced disappearance, he or she may benefit from a two-thirds reduction of the penalty established in this article. 
Venezuela, Penal Code, 2005, Article 180.A.

Venezuela’s Constitution (2009) states: “The public authorities, whether military, civilian or of any other kind, even during a state of emergency, exception or restriction … are prohibited from committing, permitting or tolerating the forced disappearance of persons.” 
Venezuela, Constitution, 2009, Article 45.

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Bosnia and Herzegovina
In 2007, in the Šimšić case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
The Court found no grounds for the Defence assertion that [enforced] disappearances … were not accepted as crimes against humanity pursuant to customary international law. To wit, the Court notes that the stated actions are indisputably criminal offences which at the time of war acquire the characteristics and the meaning of war crimes …
[T]he Appellate Panel finds that, pursuant to the ICTY jurisprudence, … enforced disappearance of persons [is] listed in the ICTY case law as the offences falling under the category of “other inhumane offences”.
[T]he Appellate Panel notes that the category of “other inhumane acts, as a general category of crimes against humanity”, constitutes part of customary international law. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Šimšić case, Judgment, 7 August 2007, pp. 47–48.

Canada
In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the Respondent, Canada’s Minister of Citizenship and Immigration, the Court stated:
The Respondent notes that the Rome Statute of the International Criminal Court … also lists enforced disappearance of persons as a crime against humanity and that this statute is endorsed in Canada as a source of customary law. 
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.

Colombia
In 2005, in the Constitutional Case No. C-473/05, the Plenary Chamber of Colombia’s Constitutional Court stated with regard to deceased victims of enforced disappearance:
All necessary measures must be adopted in order to deliver the body to [the victim’s] … relatives. This obligation must be fulfilled irrespective of whether the identity of the perpetrator of the disappearance or killing is identified and of whether an investigation of those allegedly responsible is opened. 
Colombia, Constitutional Court, Constitutional Case No. C-473/05, Judgment of 10 May 2005, § 58.

Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
Taking into account … the development of customary international humanitarian law applicable in internal armed conflicts, the Constitutional Court notes that the fundamental guarantees stemming from the principle of humanity, some of which have attained ius cogens status, … [include] the prohibition of enforced disappearances. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 112.
[footnote in original omitted]
Nepal
In its order in the Forced Disappearances case in 2007, the Supreme Court of Nepal stated:
Because international law has only categorized disappearance during a period of armed conflict as a violation of human rights incidents of disappearance were not minimized, and therefore, the United Nations General Assembly deemed acts of disappearance as crimes against humanity and issued a Declaration on 18 December 1992 for the purpose of saving all persons from enforced disappearance. In line with the obligation imposed on the state party by the Declaration, the General Assembly of the United Nations on 20 December 2006 issued the International Convention for the Protection of All Persons From Enforced Disappearances [hereinafter Disappearance Convention]. Although the Disappearance Convention has not yet come into force and Nepal has not yet ratified it, this Convention has developed an important standard concerning the obligations of a state with respect to the security of disappeared persons; in the event that the Disappearance Convention is accepted by international community, it is expedient to accept the standards established in the Convention as the prevailing standard in international law. Therefore, the State ought to comply with these standards, accordingly.
The preamble to the Convention, invoking the principles enumerated in the Charter of the United Nations, particularly the human rights and basic freedoms indicated by Article 55 of the Charter, and the Universal Declaration of Human Rights, states that the Convention is to promote universal respect for, and observance of, human rights and fundamental freedoms. From among the principles stated in the Universal Declaration of Human Rights, the core principles in all conventions, covenants and instruments are influenced by friendship, justice and peace, on the basis of the inherent dignity and respect for the inalienable rights of all members of human society. From among these instruments, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention against Torture, Cruel, Inhumane or Degrading Treatment or Punishment are related to the present matter and hence are particularly relevant.
For the purpose of understanding the spirit and the development of the aforementioned international human rights instruments, one should take into account the Code of Conduct of Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, and the Standard Minimum Rules for the Treatment of Prisoners.
Since the aforementioned instruments are concerned with developing the contours of the human rights conventions ratified by Nepal, the Convention for the Protection of Enforced Disappearance, issued in 2006, should be seen in a similar light. This Convention has not established different values from the prevailing international human rights law; rather it has reinforced the values enshrined in international human rights law. Therefore, non-ratification of the Disappearance Convention offers no support to the contention that State responsibility with respect to disappeared persons established by mainstream human rights instruments is negligible to any extent. Thus, even as the 2006 Convention is yet to be ratified, there should be no barriers to use the provisions of the Convention as guiding principles. Moreover, it should be considered necessary on the basis of the obligations created out of the conventions ratified by Nepal, together with the principles of prevailing international human rights law for the protection of human rights.
There is no problem in implementing the principles laid down in the Disappearance Convention for the sake of respecting and promoting the life, dignity and freedom of Nepal’s citizens. Therefore, our legal system can also include these principles as it is beneficial for us. It is not objectionable in both our law and practice; rather it should be seen as essential. Moreover, it is expected that the State should, within its constitutional framework, proceed further as soon as possible to ratify the Disappearance Convention. This will demonstrate our sensibility towards our citizens and the responsibility of the State towards the international community in protecting human rights. Now, let us consider some of the fundamental provisions of the Disappearance Convention.
Article 2 of the Disappearance Convention considers the act of enforced disappearance as an arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or a person or group of person acting with 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 Disappearance Convention has prescribed the following obligations to a State party to guarantee that persons will not be disappeared forcefully by the State party:
Nobody shall be disappeared forcefully or kept in secret detention;
The act of enforced disappearance shall be made a criminal act through the enactment of law. The act of enforced disappearance will not be considered a political offence and in order to ensure the presence of the alleged perpetrator in any judicial proceedings, arrangements for extradition or rendition will be made;
Investigations of enforced disappearances will be carried out and responsible persons will be brought to justice;
The right to an effective remedy shall be guaranteed to the victims of enforced disappearance;
An impartial investigation for alleged incidents of disappearance shall be ensured; and
Arrangements for the protection of complainants, witnesses and relatives of victims shall be made.
In 1994, before the initiation of the Disappearance Convention, some states on the American continent issued the Inter-American Convention on Enforced Disappearance of Persons. Countries such as Colombia, Guatemala, Paraguay, Peru and Venezuela have made separate laws in accordance with the Convention and thereby have defined enforced disappearance as a criminal act.
In the 1966 International Covenant on Economic, Social and Cultural Rights, to which Nepal has ratified and become a party, State Parties to the instrument accepted the obligation of the State to accord to families the widest possible security and assistance to establish a family, particularly to support the care and education of children. Similarly, Article 6 of the International Covenant on Civil and Political Rights (ICCPR) states that every human being has an inherent right to life and that this right shall be protected by law. The expression “right to life” used in this Article has been interpreted by the United Nations Office of the High Commissioner of Human Rights as the highest right of a person which may not be suspended in any kind of emergency. The ICCPR has also provided State parties with the obligation to protect the rights of its citizens.
• Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.
• Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
• Anyone who is arrested or detained on criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.
• Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
• Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
In interpreting Article 2 of the ICCPR, the Human Right Committee, under the Office of the High Commissioner for Human Rights, has stated that the act of enforced disappearance violates Articles 6, 7 and 9 of the ICCPR and the act may also amount to a crime against humanity.
The State Parties to the ICCPR have accepted the obligation that necessary legislative measures shall be enacted to respect and guarantee these rights if the prevailing legislative measures do not appear to be sufficient. In addition, State Parties are obliged to provide effective remedies if these rights are violated by any persons working in official capacity.

As Section 9 of Treaty Act, 2047 provides that treaties or agreements ratified by Nepal will be applied as Nepali law. Thus, there is absolutely no ground for the State to claim that it is absolved from the obligations granted by these instruments.

Though Nepal has not become party to any separate regional convention, it has remained an active member of the United Nations, has ratified several Conventions relating to human rights, and has repeatedly expressed its commitment towards human rights and the freedoms of Nepali citizens in the Constitution and other legal provisions. In this context, it seems that this Court may use standards and principles established pursuant to the above mentioned foreign and human rights-related decisions by regional courts under recognized principles of justice embodied in our Constitution. There are no reasons to deviate from these decisions.
While considering what the obligations of the State are to its citizens during a time of conflict or a time of peace, the preamble to the Constitution of the Kingdom of Nepal, 1990, has made a commitment to guarantee the basic human rights of the people, thereby transforming the concept of rule of law into living reality. Fundamental rights stated under Part III, Article 12 (1) of the same Constitution provide that no one shall be deprived of personal liberty, unless done so in accordance with the law. Similarly, the right to criminal justice, provided in Article 14, clause (4), states that anyone who is detained during the course of any investigation, trial, or for any other reason, shall not be subjected to any physical or mental torture, nor shall he or she be subjected to any cruel, inhuman or degrading treatment. Clause (5) of the same Article states that no person who is arrested shall be detained without being informed as soon as possible of the reasons for their arrest. Clause (6) of the same Article states that every person who is arrested and detained in custody shall be produced before a judicial authority within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to such authority, and no such person shall be detained in custody beyond the said period except on the order of such authority.
The basic fundamental rights provided by the 1990 Constitution are made more secure by the Interim Constitution of Nepal, 2007. A full commitment is made to civil liberty, fundamental rights, human rights, and the concept of rule of law, all of which have been expressed in the preamble to the Constitution itself.
Clause (1) of Article 12 of the Interim Constitution in clear terms protects the right to life of every person and thereby provides every person the right to live with dignity. Regarding the right to justice, Article 24 (1) provides that no person shall be detained without being notified of his or her arrest and receiving the reasons thereof. Clause (2) of the same Article states that a detained person shall be produced before the judicial authority within 24 hours of the arrest, excluding the time necessary for the journey from the place of arrest to such authority. The provision also guarantees that the arrested person shall not be put in detention except by the order of the judicial authority. Clause (8) states that each person shall have right to be informed of the proceedings against him and Clause (9) states that each person shall have the right to fair trial in a competent court or judicial authority.
Similarly, Article 26 of the Interim Constitution, which provides for the right against torture, provides in Clause (1) that anyone who is detained in the course of an investigation, trial or custody, or for any other reason, shall neither be subjected to any physical or mental torture, nor shall be subjected to any cruel, inhuman or degrading treatment. Clause (2) of the same Article makes the act described in Clause (1) punishable by law and also provides that the person treated in such a manner shall be entitled to compensation as prescribed by law. Further, the proviso of Clause (7) of Article 143 of the Constitution, by providing that such rights cannot be suspended even during a state of emergency in the country, remains constitutionally sensitive to the right to life.
It is beyond dispute that during times of peace the obligation to protect the fundamental rights of persons, including their right to live with dignity, is vested in the state. As civil liberties would be at greater risk during periods of conflict, the obligation of the state must be more rigorous during such circumstances. The protection of human rights and compliance with international humanitarian law has, during the time of conflict, remained a challenge, even at the international level. A report has shown that during 2003 and 2004, incidences of enforced disappearance and illegal detention in Nepal were found to be the highest in the world.
It seems that the above mentioned Declarations, Conventions and Covenants have affirmed that the practice of enforced disappearance would seriously violate the right to live with dignity, the right against torture, the right to personal freedom, the right to a fair trial, the right to easy access to justice, and the rights related to family life.
Even as there has not been a separate legal provision on enforced disappearance in Nepal, some of the provisions of the Interim Constitution, 2007 speak to the issues raised by such incidents during the time of the conflict. The political consensus achieved between the Seven Political Parties and CPN (Maoist) leading to the Comprehensive Peace Agreement (CPA) entered between the Government of Nepal and CPN (Maoist) on 2063/8/5 (Nov. 21, 2006), was the background for the promulgation of the Interim Constitution. The CPA also expressed commitment to international humanitarian law and principles and standards of basic human rights. It seems that the State has accepted its obligation towards disappeared citizens due to its commitment to comply with basic human rights law and international humanitarian law, as expressed in Clause 5.2.3 of the aforementioned peace agreement, which has been included as Annex 4 of the Interim Constitution. The clause states that both parties agree to make public the real names, family names and home addresses of those who were disappeared and killed during the time of war within 60 days of signing of the agreement and thereby apprise this information to their families also. Clause 5.2.5 states that both parties have agreed to establish a high level Truth and Reconciliation Commission to investigate those who violated human rights during the armed conflict. Clause 7 provides that both parties commit to respect human rights and international humanitarian law. Therefore, the State seems to have accepted the fact that it holds legal obligations with respect to disappeared persons.
The Interim Constitution of Nepal, 2007 has also endorsed the commitments expressed in the peace agreement and various other political agreements. Article 33 (L) in Part IV of the Interim Constitution (Directive Principles and Policies), provides that families of disappeared persons will be provided with relief on the basis of the report of the Commission of Inquiry, which shall be constituted to investigate the status of disappeared persons during the conflict. Article 33 (N) establishes a High Level Truth and Reconciliation Commission to explore the truth of those who violated human rights during the armed conflict and those who were involved in crimes against humanity, and to create an environment of reconciliation in society.
Even though Article 36 states that issues relating to the implementation or non-implementation of provisions stated under Part IV of the Constitution cannot be raised in any court of law, there is no dispute that that the provisions in these Articles are commitments of the State. The principle enunciated in the case of Yogi Narahari Nath v Cabinet Secretariat and Others held that the directive principles and policies of the State are not mere showpieces; they cannot be overlooked even though they cannot be implemented through a court of law. Therefore, the state may not overlook the obligations stipulated in the Directive Principles.
As the act of disappearance is taken as a violation of the fundamental rights of a person, including the right to life and freedom and justice, the legal investigation and proceedings on incidents of disappearance are objectively considered as remedies against the breach of fundamental rights. Thus, the process of truth finding can be considered as part of the implementation of this remedy. The State may want to take a stand that the formation of a Commission with respect to matters pertaining to directive principles and policies can be completed at its own convenience. The State may also contend that the implementation of its directive principles is solely a matter of its own discretion. But the legal investigation, prosecution and remedies to be implemented with respect to a remedial mechanism involving fundamental rights cannot be a matter of secondary priority and in addition, are not outside the jurisdiction of this Court.

Our judicial system has adopted the approach that the Court can give necessary directives if the State does not demonstrate sensibility and responsibility with regard to violations of human rights committed during the time of the conflict. In the case of petitioner Bhim Prakash Oli v Prime Minister and Cabinet Secretariat, writ No. 3394 of the year 2004, this Court ordered that it is the responsibility of the State to determine a clear policy concerning the relief to be given to people who have been victims of disappearance during the conflict, and thereafter distribute relief on the basis of equality without any discrimination.
In the present context, as the condition of most of the persons considered in question No.1 seems to be unknown, the State cannot, in light of the international legal instruments mentioned above, the foreign and human rights-related decisions made by regional courts, and our constitutional provisions, escape from its obligation to identify and make public the status of disappeared persons, to initiate legal action against those persons who appear to be the perpetrators, and to provide appropriate remedies to the victims.
Now, considering the issue as to whether the State has taken steps to fulfill its obligation, the written submissions, received from the respondent and the Joint Government Attorney who appeared on behalf of the Office of the Attorney General, provide no indications with concrete support that the Attorney General has attempted to fulfill these obligations. Even though the State has accepted such obligations in the peace agreement signed on 2063/8/5 (Nov 21, 2006) between the Government and the CPN (Maoist) and the Interim Constitution, 2007, no concrete steps have been taken to fulfill these obligations. Life is significant precondition for enjoying all freedoms. Other preconditions, such as the capacity for autonomy, and social and economic stability which allow people to choose between meaningful options, are valuable only when we can enjoy life. As enforced disappearance makes the very existence of a person unknown, there is no opportunity for such a person to have any enjoyment of the basic and fundamental human rights guaranteed by national and international law. In countries with written constitutions, there would be no division of opinion that the primary obligation rests with the State to guarantee the civic rights expressed by the international instruments to which the State or Constitution has guaranteed its commitment. The Interim Constitution has provided an obligation to this Court to serve as the guardian of the Constitution and a watchdog of civil rights when other organs of the State fail to fulfill their obligations. Therefore, this court is competent to issue appropriate orders to make the state fulfill its responsibilities.

The submission made to this Court by the National Human Rights Commission reveal that the Commission discovered serious violations of human rights with respect to the persons stated in the petitions, in addition to other similar incidences of disappearance, and thereby recommended that the Government take necessary action against the responsible officials and also make public the status of the detainees. The Commission also requested that the Government implements the recommendations of the Commission. However, the Government has not initiated any additional investigation or taken any further action to determine the status of allegedly disappeared persons.
In the course of determining the status of detainees, this Court, through the formation of the DIT [Detainees Investigation Team], ordered the investigation of the true facts with respect to Writs No. 3575, 100, 104 and 632, specifically as to whether the persons stated in the petitions were arrested. This Court also requested the submission of an opinion as to what is the proper course of action with respect to other similar cases. The DIT submitted its report after conducting its inquiry.
Even as the status of most of the persons stated in the petitions has remained unknown and the aforementioned Committee, in addition to human rights institutions and organizations, has recommended additional investigations on these matters, the responsibility to carry out investigations is fundamentally vested in the Executive. Because the Executive has not taken any initiative to carry out such investigations up until this date, this Court carried out investigations of some the representative cases on its own initiative. Due to the jurisdiction of the Court and the Court’s limited resources, it was not possible for this Court to carry out separate investigations with respect to all of the persons stated in the petitions. It is found, however, on the basis of the conclusions of the Court’s report of the investigations of those limited number of cases, that it is necessary that an additional, complete investigation is carried out by establishing a mechanism on matters relating to persons who were allegedly disappeared.
Even the Government of Nepal’s limited initiative with respect to disappeared persons, the Baman Prashan Neupane Committee, has concluded that there is a need for additional investigations on disappeared persons. In addition, the National Human Rights Commission and the Office of the High Commissioner for Human Rights have both urged for additional investigations concerning this matter, which have not been implemented to date. It is also not possible for this Court to carry out investigations with respect to all cases of disappearance. Therefore, the efforts made by the Government to this date have not been sufficient or effective. It is imperative that the Government carry out effective investigations to determine the status of the persons stated in the petitions, as well as other citizens who were disappeared in the similar manner during the conflict.

From the deliberations made in the aforementioned questions, we have concluded that the State has not made sufficient or effective efforts to determine and make public the status of enforced disappeared persons. Political will power is clearly necessary for the purpose of determining and making public the status of enforced disappeared persons, taking action against the perpetrators, and providing relief to victims; it is equally necessary to have a legal mechanism in place. The Interim Constitution of Nepal 2007, a product of political consensus achieved in the course of structuring a peaceful settlement to the past conflict, has accepted the obligation of the State to establish a Commission of Inquiry with respect to persons disappeared in the past and to provide relief to the families of victims.
In order for the State to put into action the commitments established through political consensus and the Constitution, effective legal and institutional mechanisms are necessary. Concerning the status of the disappeared citizens, the Government of Nepal has, through its Executive order, constituted a one-man Committee of Baman Prashad Neupane and this Court constituted the DIT; however, a Commission of Inquiry to investigate this matter of public importance could only be constituted in accordance with the Commission of Inquiry Act, 1969. In accordance with the Act, the formation, functions, power and duties of a commission of inquiry will be prescribed by the Government of Nepal through a notification in the Nepal Gazette. Even though the Act has established the grounds for the formation of a commission of inquiry, it has not expressly mentioned the procedure for the formation of the commission, and the standard for competence and neutrality of the commission. It has neither provided for sufficiently robust jurisdiction, nor has guaranteed the representation of concerned parties in the formation of the commission. It has also not guaranteed the security of victims, witnesses, plaintiffs, legal practitioners and investigators.
Given that international norms require that the investigation of a disappeared person’s status be pursued until such status is established, a commission of inquiry, as constituted under the Commission of Inquiry Act, cannot meet this standard. By the very nature of the act of disappearance, it is necessary that the families and relatives of disappeared persons are provided with the findings of the investigations and that the report is made public. The Commission of Inquiry Act does not ensure this.
The task of finding out the truth concerning disappeared persons during the conflict is certainly a complex and challenging task. There is hardly a potential for success unless there are clear and effective legal provisions. The Commission of Inquiry Act that we currently have was contemplated only to establish commissions of inquiry on matters of public importance during times of peace. The Act was not specifically intended to have competence over the types of incidents that arise during times of conflict. Therefore, after studying the Act in total, there are no reliable grounds to believe that a commission of inquiry constituted in accordance with this Act to probe the status of disappeared citizens would be sufficiently capable to undertake an effective investigation.
Even though there are some limited provisions found in the Civil Liberties Act, 1955 and the Torture Compensation Act, 1996, with respect to obtaining remedies by a person who has become a victim of a state crime, unless the status of the disappeared person is determined, the victim cannot receive effective remedies pursuant to the aforementioned Acts; moreover, no separate legal mechanism is available to address matters relating to disappearance.
The enforced disappearance of any person deprives the person of his right to equal protection of the laws. His personal liberties are taken away and even minimum values of humanity are violated. Such acts instantly end all of his personal liberties. Therefore, any state which has accepted obligations to universally respect, comply, and promote human rights and fundamental freedoms needs to be serious and sensitive to such incidents of human rights violations. It is urgent for the State to become particularly vigilant as impunity may flourish during the time of conflict.
In such a situation, as deliberated hereinabove, in which there is no separate law in Nepal to address especially enforced disappearance, it seems to us that a special law stipulating all major aspects of disappearance, including inquiry into the incidents of enforced disappearance, the determination of the status of disappeared persons, the guarantee that their status is made public and that action is taken against those who are responsible, and the provision of relief to the victims, is necessary. It is also the responsibility of the State to create an environment such that victims trust and respect the State’s justice system and that the State officials who are guilty do not enjoy any immunity from any criminal liability resulting from their actions. This obligation is neither a separate or special obligation of the State; rather it is an obligation borne out of the State’s commitments to respect basic fundamental rights and human rights. Therefore, this Bench has reached the conclusion that in order to fulfill this obligation, the State needs to enact such a law.
The Interim Constitution of Nepal, 2007 has provided the exclusive right to the Legislature- Parliament to decide whether a particular law ought to be made. The Legislature-Parliament is competent enough to make a law in this manner and it is expected that the highest level of prudence will be taken for the purpose of fulfilling the obligations imposed by the Constitution. This Bench’s view that such a law on this subject is needed is not intended to interfere with or encroach upon the jurisdiction of the Legislature-Parliament; rather it should be understood as a legitimate expression of judicial concern that an effective law should be to enacted in light of internationally established standards for the protection of civil liberties to which the State has expressed its commitment.
Thus, it seems to us that while enacting the law as described above, the State should take note of its commitments concerning disappeared persons expressed in the Constitution, the fundamental rights and freedoms of its citizens, international instruments ratified by the State concerning human rights, and international humanitarian law. The State should also take note of the standards established in the international instruments accepted by the international community, such as the Charter of the United Nations, the Universal Declaration of Human Rights, the Declaration Concerning the Protection of Persons Against Forceful Disappearance, 1992, and the International Convention for the Protection of All Persons from Enforced Disappearance, 2006, when designing the law.

It has been established from the questions deliberated above that the act of disappearance violates the civil liberties of a person, including the right to life, as well as several other fundamental rights provided by the Constitution. Article 88 (2), pursuant to Article 23 of the Constitution of the Kingdom of Nepal, 1990, and Article 107 (2), pursuant to Article 32 of the Interim Constitution of Nepal, 2007, guarantee remedies against violations of fundamental rights provided by the Constitution. Article 88 (2) of the previous Constitution and Article 107 (2) of the present Constitution states, “The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution, for the enforcement of any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective, or for the settlement of any constitutional or legal question involved in any dispute of public interest or concern, have the extraordinary power to issue necessary and appropriate orders to enforce such rights or settle the dispute. For these purposes, the Supreme Court may, with a view to imparting full justice and providing the appropriate remedy, issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.” Thus, it seems from the aforementioned provisions of the Constitution that an inherent right is vested with this Court to issue, for the purpose of protecting the basic fundamental rights of the people, necessary orders to enforce the prevailing rights of the people. It is also a constitutional obligation of this Court to issue such an order.

(C) A directive order is hereby issued to respondents, the Government of Nepal, the Ministry of Home Affairs, and the Office of the Attorney General, to undertake the necessary measures to enact an act for the protection of disappeared person that includes provisions for a commission of inquiry to investigate the causes of their disappearance and the status of disappeared persons. The commission should be sufficiently powerful to carry out in-depth and comprehensive inquiries of said persons, and thereafter submit a report on their findings. Then, said respondents should initiate criminal investigations on the basis of the report and initiate prosecutions, based on propriety and necessity. 
Nepal, Supreme Court, Forced Disappearances case, Order, 1 June 2007.

Peru
In 2004, in the Genaro Villegas Namuche case, Peru’s Constitutional Court found:
3. Enforced disappearance violates several fundamental rights. In addition to violating the right to freedom of movement, it impedes the victim’s recourse to the applicable legal remedies that protect such rights, thus violating the right to challenge the legality of the detention in a court of law. … In addition, [enforced disappearance] generally involves acts of torture and inhuman and degrading treatment, thus violating the right to personal integrity. Further, the practice of enforced disappearance also usually involves the extrajudicial execution of detained persons and the subsequent hiding of their bodies. Such executions violate the right to life, while the act of hiding the bodies endeavours to ensure impunity for the act.

5. Extrajudicial execution, enforced disappearance or torture are cruel, terrible acts constituting serious human rights violations and cannot go unpunished. This is to say that the perpetrators and accomplices of human rights violations may not go without lawful punishment for their acts. Impunity can be the result of legislative measures when a legal text exempts perpetrators from punishment for human rights violations. Impunity can also de facto result when, in spite of existing legislation providing for the punishment of those responsible, they remain free from punishment because of threats or the commission of further acts of violence. 
Peru, Constitutional Court, Genaro Villegas Namuche case, Case No. 2488-2002-HC/TC, Judgment of 18 March 2004, §§ 3 and 5.

In 2004, in the Gabriel Orlando Vera Navarrete case, Peru’s Constitutional Court stated:
Both common Article 3 [of the 1949 Geneva Conventions] and Article 4.2 of [the 1977] Additional Protocol II expressly prohibit the commitment of acts that result in a person’s disappearance. Moreover, common Article 3 prohibits any attempt on the life and personal integrity of a person, particularly murder of all kinds, mutilations, cruel treatment, and torture. Depriving a person of legal remedies and guarantees and ordering or carrying out acts aimed at making a person disappear shall be considered a grave breach of international humanitarian law that the state must punish. 
Peru, Constitutional Court, Gabriel Orlando Vera Navarrete case, Case No. 2798-04-HC/TC, Judgment of 9 December 2004, § 16.

23. The crime of enforced disappearance of persons violates various values because it affects a person’s freedom of movement, due process guarantees, the right to physical integrity and to recognition before the law as well as ... the right to effective legal protection. The protection of these rights shall be absolute because such protection is guaranteed by international human rights law and international humanitarian law.
24. Enforced disappearance of persons creates a cruel state of uncertainty both for the disappeared person and for his or her relatives who become direct victims themselves. Therefore, international law recognises the crime of enforced disappearance as one of the most serious types of human rights violations. 
Peru, Constitutional Court, Gabriel Orlando Vera Navarrete case, Case No. 2798-04-HC/TC, Judgment of 9 December 2004, §§ 23–24.

In 2005, in the Juan Nolberto Rivero Lazo case, Peru’s Constitutional Court stated:
26. The crime of enforced disappearance of persons violates various values because it affects a person’s freedom of movement, due process guarantees, the right to physical integrity and to recognition before the law as well as ... the right to effective legal protection. The protection of these rights shall be absolute because such protection is guaranteed by international human rights law and international humanitarian law.
27. Enforced disappearance of persons creates a cruel state of uncertainty both for the disappeared person and for his or her relatives who become direct victims themselves. Therefore, international law recognises the crime of enforced disappearance as one of the most serious types of human rights violations. 
Peru, Constitutional Court, Juan Nolberto Rivero Lazo case, Case No. 4677-2005-HC/TC, Judgment of 12 August 2005, §§ 26–27.

In 2006, in the Castillo Páez case, the Permanent Criminal Chamber of Peru’s Supreme Court of Justice stated:
[T]he definition of enforced disappearance seeks the protection of … amongst others the right to life, liberty and security, the prohibition against cruel, inhuman or degrading treatment, the right not to be arbitrarily detained, imprisoned or expelled, the right to fair trial and due process, the right to being recognised as a legal person before the law, and the right to human treatment when detained. 
Peru, Supreme Court of Justice, Permanent Criminal Chamber, Castillo Páez case, Case No. 0012-2006-HC/TC, Judgment of 15 December 2006, § 29.

[U]p to this moment, the whereabouts of Castillo Páez are unknown, a situation that is a direct consequence of the perpetrator’s unlawful acts for which he must be held fully responsible.
Based on the evidently unquestionable fact that the fate of the student Ernesto Castillo Páez is still unknown, we must presume that his unlawful deprivation of liberty continues and thus the offence continues to be perpetrated – hence its definition as a continuous offence. It is possible to state in these cases that the offence was “continuously committed over time”. This was established by the Constitutional Court in case no. 2488-2002-HC/TC, Villegas Namuche Case, section 7, sub-section 26, fourth paragraph, which … is binding on all judicial decisions. Consequently and in conformity with Legislative Decree No. 959, Article 285 A, the proven facts of the present case fall within Article 320 of the Criminal Code currently in force, that is, they constitute a crime against humanity – enforced disappearance. 
Peru, Supreme Court of Justice, Permanent Criminal Chamber, Castillo Páez case, Case No. 0012-2006-HC/TC, Judgment of 15 December 2006, § 30.

ii) the offence involves depriving the victim of his or her liberty in a clandestine way – hiding him or her – by means of detention, arrest, hijack, kidnapping or other methods. This is the typical definitional element of the offence which is essential for an enforced disappearance to occur and which has the effect of placing the victim outside the protection of the law and of the institutions.

iv) the offence is a “continuous offence” because the crime continues to be committed for as long as the whereabouts or fate of the person who has disappeared remain concealed. In this sense, the offence is not part of the past but continues to be committed for as long as the above-mentioned conditions are met.  
Peru, Supreme Court of Justice, First Provisional Criminal Chamber, Castillo Páez case, Case No. 0012-2006-HC/TC, Judgment of 18 December 2007, § 3(ii) and (iv).

In 2007, in the Chuschi case, the National Criminal Chamber of Peru’s Supreme Court of Justice stated: “Both at the national and international levels, it is established that the crime of enforced disappearances is a continuous crime.” 
Peru, Supreme Court of Justice, National Criminal Chamber, Chuschi case, Case No. 105-04, Judgment of 5 February 2007, p. 30.

[T]he crime of enforced disappearance, just like every crime against humanity, before becoming a positive rule of criminal law already belonged to what is called “ius cogens”, that is to say, it was part of common law. This is why for many scholars it was unnecessary for such crime to be incorporated into national legal frameworks. Since the crime of enforced disappearance was already part … of humankind, the ability to prosecute and punish such a crime is already an obligation binding every state, as has repeatedly been stated by the Inter-American Court of Human Rights in its jurisprudence. 
Peru, Supreme Court of Justice, National Criminal Chamber, Chuschi case, Case No. 105-04, Judgment of 5 February 2007, p. 109.

[T]he international community has recognised enforced disappearance as a crime against humanity. Enforced disappearance constitutes an assault on various fundamental human rights. States are obliged to adopt legislative, administrative and political measures to … eradicate this crime against humanity. 
Peru, Supreme Court of Justice, National Criminal Chamber, Chuschi case, Case No. 105-04, Judgment of 5 February 2007, p. 114.

Perpetrator:
According to our legislation, the crime of enforced disappearance is a special perpetrator offence, for the perpetrator can only be a public official or civil servant, that is to say, a state agent This requirement differs from international norms [on enforced disappearance] which include in their definition other persons or even political organizations as possible perpetrators. [footnote in original omitted]

Victim:
With regards to the victim of the crime of enforced disappearance, the definition of the crime does not impose any restriction, allowing any person to be the victim of such crime, including public officials or civilians.

Commission of the crime:
The commission of the crime of enforced disappearance is committed in two stages which can occur simultaneously or in succession:
1. Deprivation of a person’s liberty, either lawfully or unlawfully. [footnote in original omitted]

2. One or more public officials or civil servants order or carry out acts in order to hide the victim without his or her family being able to find out his or her whereabouts. They abstain from providing information on the victim’s whereabouts. They thereby place the victim outside the protection of the law and impede his or her recourse to the applicable legal remedies established for his or her protection.

With regard to the requirement in our legislation that the person’s disappearance be duly proved, we must … state that such requirement is not found in any of the international texts. [To the contrary, lack] … of knowledge regarding the whereabouts of the victim is an intrinsic characteristic of the crime of enforced disappearance. 
Peru, Supreme Court of Justice, National Criminal Chamber, Chuschi case, Case No. 105-04, Judgment of 5 February 2007, p. 115.

[A] victim who disappeared has suffered the violation of the following rights:
a) the right to life,

b) the right to physical and moral integrity, which is breached from the moment the disappeared persons were detained because they were detained by means of physical and psychological violence,

c) the right to physical liberty which is violated from the beginning of the victim’s detention which constitutes an arbitrary deprivation of liberty, a violation which continues until the person reappears.

d) the right to access to justice and due process of law. 
Peru, Supreme Court of Justice, National Criminal Chamber, Chuschi case, Case No. 105-04, Judgment of 5 February 2007, p. 115.

[T]he crime of enforced disappearance is a continuous offence and therefore the status of disappeared person is granted from the moment the person is detained and his or her whereabouts become unknown until his or her location (dead or alive) is established. This is because:
- the violation to his or her rights continues;
- the person remains under the responsibility of his or her captors;
- his or her family continue to await information on his or her whereabouts. 
Peru, Supreme Court of Justice, National Criminal Chamber, Chuschi case, Case No. 105-04, Judgment of 5 February 2007, p. 122; see also p. 31.

A. The crime of enforced disappearance has been defined by our criminal system as a crime against humanity … It violates fundamental human rights and the very essence of human dignity. More specifically, it contravenes the protection which the law must provide to every person arbitrarily deprived of his or her liberty and it impedes his or her access to the applicable legal remedies and procedural guarantees. …
B. The crime of enforced disappearance … involves not only a person’s deprivation of liberty by state agents – according to the limited view of our legislator – but also the systematic concealment of such detention in order to keep the victim’s whereabouts unknown. It can therefore be classified as a continuous offence, requiring a specific result and perpetrator. The perpetrator adopts a negative attitude towards providing information on the whereabouts of the victim, thus creating and maintaining a state of uncertainty regarding his or her fate and placing him or her outside the protection of the law and the judiciary. …
C. … [T]he crime of enforced disappearance is a continuous crime (an unlawful situation is generated as a consequence of a punishable act whose continuation depends on the will of the perpetrator). The fact is renewed continuously as a consequence of the victim’s deprivation of liberty and subsequently his or her disappearance … The crime must be committed by a specific perpetrator (the act shall only be punishable if it is committed by public officials or civil servants). …
D. … The crime involves the commission of two acts: deprivation of a person’s liberty followed by making him or her disappear which may take place in various ways. Enforced disappearance always involves the denial of any information on the person unlawfully detained, concealing his or her status or, at any rate, not acknowledging that he or she has been released, thus removing the victim from the protection of the law. 
Peru, Supreme Court of Justice, Permanent Criminal Chamber, Chuschi case, Case No. 1598-2007, Judgment of 24 September 2007, pp. 159–161.

United States of America
In 2006, in the El Masri case, a civil suit in which the plaintiff claimed to have been an innocent victim of the United States’ extraordinary rendition program and sought redress from the former Director of the Central Intelligence Agency (CIA), private corporations allegedly involved in the program, and unknown employees of both the CIA and the private corporations, the Court granted the Government’s motion to dismiss, finding that the claim of state secrets was valid. The Court stated:
[I]t is important to note that, unlike other privileges, the state secrets privilege is absolute and therefore once a court is satisfied that the claim is validly asserted, the privilege is not subject to a judicial balancing of the various interests at stake.

[T]he substance of El-Masri’s publicly available complaint alleges a clandestine intelligence program, and the means and methods the foreign intelligence services of this and other countries used to carry out the program. And, as the public declaration makes pellucidly clear, any admission or denial of these allegations by defendants in this case would reveal the means and methods employed pursuant to this clandestine program and such a revelation would present a grave risk of injury to national security.

To succeed on his claims, El-Masri would have to prove that he was abducted, detained, and subjected to cruel and degrading treatment, all as part of the United States’ extraordinary rendition program. As noted above, any answer to the complaint by the defendants risks the disclosure of specific details about the rendition argument.

[W]hile dismissal of the complaint deprives El-Masri of an American judicial forum for vindicating his claims, well-established and controlling legal principles require that in the present circumstances, El-Masri’s private interests must give way to the national interest in preserving state secrets. The United States’ motion to dismiss must therefore be granted.

It is important to emphasize that the result reached here is required by settled, controlling law. It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri’s complaint. Nor does this ruling comment or rule in any way on the truth or falsity of his factual allegations; they may be true or false, in whole or in part. Further, it is also important that nothing in this ruling should be taken as a sign of judicial approval or disapproval of rendition programs; it is not intended to do either. In times of war, our country, chiefly through the Executive Branch, must often take exceptional steps to thwart the enemy. Of course, reasonable and patriotic Americans are still free to disagree about the propriety and efficacy of those exceptional steps. But what this decision holds is that these steps are not proper grist for the judicial mill where, as here, state secrets are at the center of the suit and the privilege is validly invoked.
Finally, it is worth noting that putting aside all the legal issues, if El-Masri’s allegations are true or essentially true, then all fair-minded people, including those who believe that state secrets must be protected, that this lawsuit cannot proceed, and that renditions are a necessary step to take in this war, must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy. Yet, it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch. 
United States, District Court for the Eastern District of Virginia, El Masri case, Judgment, 12 May 2006.

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Argentina
In September 1984, Argentina’s National Commission concerning Missing Persons (CONADEP) released a report containing individual chapters for different categories of victims, including disappeared children. 
Argentina, Report of the National Commission concerning Missing Persons (CONADEP), 20 September 1984, reprinted in Argentina: The Truth about the Disappeared, Review of the International Commission of Jurists, Vol. 33, December 1984, p. 4.

Australia
On 4 October 2005, in response to a Question on Notice in the Senate regarding Australia’s policy on rendition: “Does the Government approve or disapprove of the United States of America’s policy of rendition, that is, kidnapping people for transfer to, and interrogation in, third countries which permit torture”, the Minister representing the Attorney-General responded: “The Government’s policy is that persons should only be transferred to another country through recognised legal means or where legal authority exists, such as extradition.” 
Australia, Senate, Minister representing the Attorney-General, Question on Notice: Rendition Policy, Hansard, 4 October 2005, p. 86.

Botswana
In 1995, during a debate in the UN Security Council on violations of IHL and human rights in the former Yugoslavia, Botswana noted that numerous specific instances of disappearances had been documented and that this confirmed beyond any doubt that massive violations of IHL and human rights had taken place.  
Botswana, Statement before the UN Security Council, UN Doc. S/PV.3612, 21 December 1995, p. 9.

Canada
In 2005, in a statement before the UN Commission on Human Rights on the human rights situation in Sudan, made on behalf of Canada, Australia and New Zealand, the representative of Canada stated: “To our dismay, serious abuses of human rights and international humanitarian law have become common place in Darfur, including … forced disappearances”. 
Canada, Statement by the representative of Canada before the UN Commission on Human Rights on the human rights situation in Sudan, made on behalf of Canada, Australia and New Zealand, 2005, p. 1.

Chad
In 2007, in its initial report to the Committee against Torture, Chad stated:
10. Since the early years of independence the Republic of Chad has had a long tradition of secret … disappearances, fed by intercommunal conflicts and bloody internecine civil wars in the struggle for power.
11. … [A]bductions are prohibited and severely punished under the 1967 Criminal Code. 
Chad, Initial report to the Committee against Torture, 22 September 2008, UN Doc. CAT/C/TCD/1, submitted 4 September 2007, §§ 10–11.

Chile
On 7 January 2001, the Chilean President announced that a special Chilean panel investigating crimes committed during the military regime of General Augusto Pinochet had established the fate of about 180 prisoners who went missing between 1973 and 1990. The President said that the fate of more than 600 other prisoners who disappeared without a trace remained unknown. The data was provided by the Civilian-Military Roundtable, an investigative panel created in 1999, which included representatives of the armed forces, police and various churches. The information was handed over to the Supreme Court to enable it to investigate the disappearances and take legal action. 
AFP, Chile: Special panel establishes the fate of 180 missing, 8 January 2001.

El Salvador
In 2010, in its written replies to the Human Rights Committee concerning its sixth periodic report, El Salvador stated:
[I]n the context of the current Government of El Salvador (which assumed its functions on 1 June 2009), the state has recognized that practices such as the enforced disappearance of persons took place in the context of the internal armed conflict, causing profound suffering to the affected families.
In addition, it has recognized the right of the families of victims of enforced disappearance … to have access to a judicial remedy and to obtain reparations in accordance with the standards of International Human Rights Law applicable to El Salvador. 
El Salvador, Written replies by the Government of El Salvador to the list of issues formulated by the Human Rights Committee in connection with its consideration of the sixth periodic report of El Salvador, UN Doc. CCPR/C/SLV/Q/6/Add.1, 21 September 2010, § 61.

Germany
In 2005, in its Seventh Human Rights Policy Report submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
Involuntary disappearance is a grave violation of human rights, which can be observed worldwide … The UN Commission on Human Rights and General Assembly, in a resolution co-sponsored by Germany, therefore continuously condemn enforced and involuntary disappearance …
Over the past years, the realization has taken hold that in individual cases the existing legal bases and differentiated political pressure are not sufficient, but that a legal instrument applicable worldwide is required in order to effectively fight enforced and involuntary disappearance.
At the 57th Session of the Human Rights Commission in 2001. Germany supported an initiative by France to implement an inter-sessional working group with the mandate to elaborate such an international legal instrument against involuntary disappearance …
Germany, which from the beginning has actively and constructively contributed to the meetings of the working group, is in favour of the elaboration of an independent convention.

3. Priorities of the German human rights policy 2005–2006

3.2. Fighting against torture and enforced disappearance
The Federal Government will commit itself emphatically … against enforced disappearance. It will therefore

- aim for the adoption of a convention against enforced disappearance by the UN General Assembly until 2006 and, to this purpose, continue actively contributing to the negotiations on the text in the working group. 
Germany, Federal Government, Seventh Human Rights Policy Report, 17 June 2005, pp. 35–36 and 200–201.

In 2006, in a report in response to a request by the Parliamentary Control Panel (parliamentary body controlling intelligence services) regarding incidents relating to the Iraq war and the fight against international terrorism, Germany’s Federal Government stated:
2. Capture and transport of detainees by foreign authorities outside a formal legal procedure; reports of secret prisons and torture

abb) Assessment of the allegations under international law by the Federal Government
All measures taken to fight international terrorism must be in accordance with international law. Resolution 1566 (2004), unanimously adopted in the UN Security Council on 8 October 2004, in this context reminds States:
“that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law” (preambular paragraph 6).
The obligation to adhere to international law also applies when States, fighting off a terrorist attack, an ongoing terrorist attack or an imminent attack, in a legally permissible manner invoke the right to self-defence according to Article 51 of the UN Charter.
If the right to self-defence is exercised in the context of an armed conflict, the rules of international humanitarian law, in particular the law of the 1949 Geneva Red Cross Conventions as well as the minimum human rights standards are to be respected. When fighting international terrorism outside an armed conflict, the rules of peacetime international law, in particular those on the protection of human rights, apply. This can lead to differing international law bases for capture, detention and the treatment of detainees.
With regard to the five following thematic issues, the details of the position of the Federal Government under international law are:

Prohibition on secret prisons
According to the conviction of the Federal Government, international law prohibits the installation of so-called “secret prisons”. It imperatively provides for the information of relatives or of the home State of an arrested or captured person.
“Secret or unacknowledged detention” of persons can fulfil the criteria of the prohibition of “enforced disappearances” of persons. The UN Human Rights Committee noted with regard to the 1966 International Covenant on Civil and Political Rights:
“The prohibitions against the taking of hostages, abductions or unacknowledged detention are not subject to derogation. The absolute nature of these prohibitions, even in times of emergency, is justified by their status as norms of general international law” (General Comment No. 29, 13(b)).
The UN General Assembly, the UN Commission on Human Rights and the ICRC have also condemned “enforced disappearances”. Recently, in the context of the UN Commission on Human Rights, a draft for an instrument against “enforced disappearance” of persons, binding under international law, has been developed. Germany actively contributed to the consultations of the working group established for that purpose and is in favour of an independent convention against the “enforced disappearance” of persons.
The Parliamentary Assembly of the Council of Europe, in its Resolution 1463(2005), also supported the call for an instrument, binding under international law, regarding the question of “enforced disappearances”. This instrument inter alia shall contain an
“unqualified prohibition of any form of incommunicado detention and of any secret places of detention”. 
Germany, Federal Government, Report in response to request by Parliamentary Control Panel (2006), 23 February 2006, pp. 55, 69–70 and 75–76.

Guatemala
In 2006, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Guatemala stated:
151. Decree No. 33-96 introduced an additional article, 201 ter, [to the Criminal Code] which established enforced disappearance as an offence.
The offence of enforced disappearance is committed by any person who, on the orders or with the authorization or support of the State authorities, deprives a person or persons of their liberty for political reasons, concealing their whereabouts or refusing to reveal their fate or acknowledge their detention, or by a public official or employee, whether a member of the State security forces or not, who orders, authorizes, supports or acquiesces in any such acts.
152. The offence of enforced disappearance shall consist of the deprivation of the liberty of one or more persons, even in the absence of political grounds, by elements of the State security forces in their official capacity, if they act arbitrarily or with an abuse or excess of force. The offence of enforced disappearance is also committed by members of organized groups or gangs having terrorist, insurgent or subversive purposes or any other criminal purpose who, as members of or participants in such groups or gangs, engage in abduction or kidnapping.
153. The offence shall be deemed to persist until such time as the victim is released.
154. A person who is guilty of enforced disappearance shall be sentenced to 25 to 40 years’ imprisonment and the maximum term of imprisonment shall be replaced by the death penalty in cases where, for the purpose of or in the process of the enforced disappearance, the victim suffers serious, very serious or fatal injuries or permanent psychological damage. 
Guatemala, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 17 July 2006, UN Doc. CRC/C/OPAC/GTM/1, submitted 17 May 2006, §§ 151–154.

Honduras
In 1995, during a debate in the UN Security Council on violations of IHL and human rights in the former Yugoslavia, Honduras expressed grave concern at the overwhelming evidence of a consistent pattern of large-scale disappearances. 
Honduras, Statement before the UN Security Council, UN Doc. S/PV.3612, 21 December 1995, p. 10.

Indonesia
In 1995, during a debate in the UN Security Council on violations of IHL and human rights in the former Yugoslavia, Indonesia described the contents of the UN Secretary-General’s report on the situation as “some of the most heinous acts committed against humanity since World War II” and made specific reference to large-scale disappearances. 
Indonesia, Statement before the UN Security Council, UN Doc. S/PV.3612, 21 December 1995, p. 12.

Ireland
In 2008, in a written response to a question on human rights issues, Ireland’s Minister for Foreign Affairs stated:
[T]he Government is completely opposed to the practice of the extraordinary rendition of prisoners.

The Committee [Cabinet Committee on Aspects of International Human Rights] has agreed that early contact should be made with the new US Administration to seek a clear statement of intent that extraordinary rendition would cease and would not resume during the new President’s term of office. … [W]hat we are looking for is a clear overall policy statement which would commit the new Administration to end the practice of extraordinary rendition wherever it may be occurring. 
Ireland, Dáil Eireann (House of Deputies), Minister for Foreign Affairs, Written Answers—Human Rights Issues (2), Dáil Eireann debate Vol. 666 No. 3, 11 November 2008.

Mexico
In 2009, during a debate in the UN Security Council on children and armed conflict, the permanent representative of Mexico stated: “We condemn all acts that jeopardize the integrity of children, such as … abduction”.  
Mexico, Statement by the permanent representative of Mexico before the UN Security Council, 6114th meeting, UN Doc. S/PV.6114, 29 April 2009, p. 29.

Nepal
In 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated: “Measures will be undertaken to prevent … forced disappearances.” 
Nepal, Declaration of commitment on the implementation of human rights and international humanitarian law, 26 March 2004, § 3.

Sri Lanka
In 1994, the President of Sri Lanka established a Commission of Inquiry into Involuntary Removal or Disappearances of Persons in certain provinces since 1 January 1988. The Commission was charged with inquiring and reporting on whether any such removals or disappearances had actually occurred; whether there existed any credible material indicating who was responsible and identifying the legal proceedings that could be taken against the persons held to be responsible; the measures necessary to prevent repetition of occurrences; and the relief that should be afforded to the families of those removed or disappeared. 
Sri Lanka, Executive order of the President of Sri Lanka on the Establishment of a Commission of Inquiry into Involuntary Removal or Disappearances of Persons in Western, Southern and Sabaragamuwa Provinces, Doc. No. SP/6/N/192/94, 30 November 1994.

United States of America
In December 2005, the US Secretary of State, prior to her departure for Europe, made a detailed statement regarding US rendition, detention, interrogation and interrogation practices, including US obligations under the 1985 Convention against Torture. This stated in part:
For decades, the United States and other countries have used “renditions” to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice.
In some situations a terrorist suspect can be extradited according to traditional judicial procedures. But there have long been many other cases where, for some reason, the local government cannot detain or prosecute a suspect, and traditional extradition is not a good option. In those cases the local government can make the sovereign choice to cooperate in a rendition. Such renditions are permissible under international law and are consistent with the responsibilities of those governments to protect their citizens.

Renditions take terrorists out of action, and save lives.
In conducting such renditions, it is the policy of the United States, and I presume of any other democracies who use this procedure, to comply with its laws and comply with its treaty obligations, including those under the Convention Against Torture. Torture is a term that is defined by law. We rely on our law to govern our operations. The United States does not permit, tolerate, or condone torture under any circumstances. 
United States, Department of State, Remarks Upon Her Departure for Europe, Secretary C. Rice, Andrews Air Force Base, 5 December 2005.

In February 2008, in a statement to Central Intelligence Agency (CIA) employees concerning the past use of Diego Garcia, the Director of the CIA stated:
The British Government announced today that the United States recently provided information on rendition flights through Diego Garcia – a UK territory in the Indian Ocean – that contradicted earlier data from us. Our government had told the British that there had been no rendition flights involving their soil or airspace since 9/11. That information, supplied in good faith, turned out to be wrong. In fact, on two different occasions in 2002, an American plane with a detainee aboard stopped briefly in Diego Garcia for refueling. Neither of those individuals was ever part of CIA’s high-value terrorist interrogation program. One was ultimately transferred to Guantánamo, and the other was returned to his home country. These were rendition operations, nothing more. There has been speculation in the press over the years that CIA had a holding facility on Diego Garcia. That is false. There have also been allegations that we transport detainees for the purpose of torture. That, too, is false. …
In late 2007, CIA itself took a fresh look at records on rendition flights. This time, the examination revealed the two stops in Diego Garcia. The refueling, conducted more than five years ago, lasted just a short time. But it happened. That we found this mistake ourselves, and that we brought it to the attention of the British Government, in no way changes or excuses the reality that we were in the wrong. 
United States, Statement by the Director of the Central Intelligence Agency, “Past Use of Diego Garcia”, 21 February 2008.

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UN Security Council
In a resolution adopted in 1995 on violations of IHL and human rights in the former Yugoslavia, the UN Security Council condemned “in particular in the strongest possible terms the violations of international humanitarian law and of human rights … as described in the [Secretary-General’s report] … and showing a consistent pattern of … large-scale disappearances”. 
UN Security Council, Res. 1034, 21 December 1995, § 2, voting record: 15-0-0.

UN General Assembly
In a resolution adopted in 1995 on the situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), the UN General Assembly expressed “its outrage at the instances of massive and systematic violations of human rights and humanitarian law, including … disappearances”. 
UN General Assembly, Res. 50/193, 22 December 1995, § 4, voting record: 144-1-20-20.

In a resolution adopted in 2000 on the Sudan, the UN General Assembly expressed its deep concern at continuing serious violations of human rights and IHL by all parties, in particular the occurrence of cases of forced and involuntary disappearance. 
UN General Assembly, Res. 55/116, 4 December 2000, § 2(ii), voting record: 85-32-49-23.

In a resolution adopted in 2003 on the situation of human rights in the Democratic Republic of the Congo, the UN General Assembly condemned “the cases of summary or arbitrary execution, disappearance, torture, harassment, unlawful arrest, widespread persecution and arbitrary detention for long periods”. 
UN General Assembly, Res. 58/196, 22 December 2003, § 2(e), voting record: 81-2-91-17.

In a resolution adopted in 2004 on the question of enforced or involuntary disappearances, the UN General Assembly:
Deeply concerned, in particular, by the intensification of enforced disappearances, including arrest, detention and abduction, where these are part of or amount to enforced disappearances, in various regions of the world and by the growing number of reports concerning the harassment, ill-treatment and intimidation of witnesses of disappearances or relatives of persons who have disappeared,

1. Reaffirms that any act of enforced disappearance is an offence to human dignity and a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights1 and reaffirmed and developed in other international instruments in this field, as well as a violation of the rules of international law; and that no State shall practise, permit or tolerate enforced disappearances as proclaimed in the Declaration on the Protection of All Persons from Enforced Disappearance;

6. Once again urges the Governments concerned:
(a) To take steps to protect witnesses of enforced disappearances, human rights defenders acting against enforced disappearances, and the lawyers and families of disappeared persons against any intimidation or ill-treatment to which they may be subjected;
(b) To continue their efforts to elucidate the fate of disappeared persons;
(c) To make provision in their legal systems for machinery for victims of enforced or involuntary disappearances or their families to seek fair and adequate reparation;
7. Reaffirms that all persons deprived of liberty must be released in a manner permitting reliable verification that they have actually been released and, further, have been released in conditions in which their physical integrity and ability to exercise their rights are assured. 
UN General Assembly, Res. 59/200, 20 December 2004, preamble and §§ 1 and 6–7, adopted without a vote.

UN Economic and Social Council
In a resolution adopted in 1979, ECOSOC asked the UN Commission on Human Rights to consider the question of disappeared persons as a matter of priority with a view to making appropriate recommendations. It also asked the UN Sub-Commission on Human Rights to consider communications on disappeared persons. 
ECOSOC, Res. 1979/38, 10 May 1979, § 3.

UN Commission on Human Rights
In a resolution adopted in 1994 on the question of enforced disappearances, the UN Commission on Human Rights:
Noting that the Working Group on Enforced or Involuntary Disappearances considers the adoption of the [Declaration on the Protection of All Persons from Enforced Disappearance] to be the most encouraging development since its establishment in respect of efforts to combat enforced disappearances, especially in so far as it recognizes that the systematic practice of such acts “is of the nature of a crime against humanity”,

6. Recalls … that all acts of enforced disappearances are offences punishable by appropriate penalties which take into account their extreme seriousness under criminal law;

15. Further recalls that, if allegations are confirmed, perpetrators should be prosecuted. 
UN Commission on Human Rights, Res. 1994/39, 4 March 1994, preamble and §§ 6 and 15, adopted without a vote.

In a resolution adopted in 1994 on the situation of human rights in the former Yugoslavia, the UN Commission on Human Rights demanded “immediate, firm and resolute action by the international community to stop all human rights violations, including … enforced and involuntary disappearances”. 
UN Commission on Human Rights, Res. 1994/72, 9 March 1994, § 5, adopted without a vote.

In a resolution adopted in 1996, the UN Commission on Human Rights:
Condemns in the strongest terms all violations of human rights and IHL during the conflict in the former Yugoslavia, … in particular massive and systematic violations, including … disappearances … and reaffirms that all persons who plan, commit or authorize such acts will be held personally responsible and accountable. 
UN Commission on Human Rights, Res. 1996/71, 23 April 1996, § 1, adopted without a vote.

In a resolution adopted in 2001 on the question of enforced or involuntary disappearances, the UN Commission on Human Rights:
Deeply concerned in particular by the increase in enforced or involuntary disappearances in various regions of the world and by the growing number of reports concerning harassment, ill-treatment and intimidation of witnesses of disappearances or relatives of persons who have disappeared,

Welcoming the fact that acts of enforced disappearance, as defined in the Rome Statute of the ICC … come within the jurisdiction of the Court as crimes against humanity,

5. Reminds Governments:
(a) That all acts of enforced or involuntary disappearance are crimes punishable by appropriate penalties which should take due account of their extreme seriousness under penal law. 
UN Commission on Human Rights, Res. 2001/46, 23 April 2001, preamble and § 5(a), adopted without a vote.

In a resolution adopted in 2003 on the situation of human rights in the Democratic Republic of the Congo, the UN Commission on Human Rights:
Noting that the Democratic Republic of the Congo is a party to several international and regional human rights instruments and to several instruments pertaining to international humanitarian law,

3. Condemns:

(e) The cases of summary or arbitrary execution, disappearance, torture, harassment, arrest, widespread persecution and arbitrary detention for long periods. 
UN Commission on Human Rights, Res. 2003/15, 17 April 2003, preamble and § 3(e), adopted without a vote.

In a resolution adopted in 2003 on the question of enforced or involuntary disappearances, the UN Commission on Human Rights:
Deeply concerned in particular by the increase in enforced or involuntary disappearances in various regions of the world, including arrest, detention and abduction, when these are part of or amount to enforced disappearances, and by the growing number of reports concerning harassment, ill-treatment and intimidation of witnesses of disappearances or relatives of persons who have disappeared,

4. Urges the Governments concerned:

(c) To take steps to protect witnesses of enforced or involuntary disappearances and the lawyers and families of disappeared persons against any intimidation or ill-treatment to which they might be subjected;
(d) That have long had many unresolved cases of disappearances, to continue their efforts to shed light on the fate of the individuals concerned and to set appropriate settlement machinery in train with the families of those individuals;
(e) To make provision in their legal systems for machinery for victims of enforced or involuntary disappearances or their families to seek fair and adequate reparation;
5. Reminds Governments:
(a) That, as proclaimed in article 2 of the Declaration on the Protection of All Persons from Enforced Disappearance, no State shall practise, permit or tolerate enforced disappearances;
(b) That all acts of enforced or involuntary disappearance are crimes punishable by appropriate penalties which should take due account of their extreme seriousness under penal law;

(f) That, as proclaimed in article 11 of the Declaration on the Protection of All Persons from Enforced Disappearance, all persons deprived of liberty must be released in a manner permitting reliable verification that they have actually been released and, further, have been released in conditions in which their physical integrity and ability to exercise their rights are assured. 
UN Commission on Human Rights, Res. 2003/38, 23 April 2003, preamble and §§ 4(c)–(e) and 5(a)–(b) and (f), adopted without a vote.

In a resolution adopted in 2004 on enforced or involuntary disappearances, the UN Commission on Human Rights:
Deeply concerned in particular by the increase in enforced or involuntary disappearances in various regions of the world, including arrest, detention and abduction, when these are part of or amount to enforced disappearances, and by the growing number of reports concerning harassment, illtreatment and intimidation of witnesses of disappearances or relatives of persons who have disappeared,

5. Urges States:
(a) To promote and give full effect to the Declaration on the Protection of All Persons against Enforced Disappearance;

6. Urges the Governments concerned:

(b) To take steps to protect witnesses of enforced or involuntary disappearances, human rights defenders acting against enforced disappearances, and the lawyers and families of disappeared persons against any intimidation or illtreatment to which they might be subjected;
(c) To continue their efforts to elucidate the fate of disappeared persons;
(d) To make provision in their legal systems for machinery for victims of enforced or involuntary disappearances or their families to seek fair and adequate reparation;
(e) To address the specific needs of the families of disappeared persons;
7. Reminds States:
(a) That, as proclaimed in article 2 of the Declaration on the Protection of All Persons from Enforced Disappearance, no State shall practise, permit or tolerate enforced disappearances;
(b) That all acts of enforced or involuntary disappearance are crimes punishable by appropriate penalties which should take due account of their extreme seriousness under penal law;

(f) That, as proclaimed in article 11 of the Declaration, all persons deprived of liberty must be released in a manner permitting reliable verification that they have actually been released and, further, have been released in conditions in which their physical integrity and ability fully to exercise their rights are assured. 
UN Commission on Human Rights, Res. 2004/40, 19 April 2004, preamble and §§ 5(a), 6(b)–(e) and 7(a)–(b) and (f), adopted without a vote.

In a resolution adopted in 2004 on technical cooperation and advisory services in the Democratic Republic of the Congo, the UN Commission on Human Rights condemned “[t]he cases of summary or arbitrary execution [and] disappearance”. 
UN Commission on Human Rights, Res. 2004/84, 21 April 2004, § 3(c), adopted without a vote.

In a resolution adopted in 2005 on enforced or involuntary disappearances, the UN Commission on Human Rights:
Deeply concerned in particular by the increase in enforced or involuntary disappearances in various regions of the world, including arrest, detention and abduction, when these are part of or amount to enforced disappearances, and by the growing number of reports concerning harassment, illtreatment and intimidation of witnesses of disappearances or relatives of persons who have disappeared,

4. Urges States:
(a) To promote and give full effect to the Declaration on the Protection of All Persons against Enforced Disappearance;

5. Urges the Governments concerned:

(c) To make provision in their legal systems for victims of enforced or involuntary disappearances or their families to seek fair, prompt and adequate reparation and in addition, where appropriate, to consider symbolic measures recognizing the suffering of victims and restoring their dignity and reputation;
(d) To address the specific needs of the families of disappeared persons;
6. Reminds States:
(a) That, as proclaimed in article 2 of the Declaration on the Protection of All Persons from Enforced Disappearance, no State shall practise, permit or tolerate enforced disappearances;
(b) That all acts of enforced or involuntary disappearance are crimes punishable by appropriate penalties which should take due account of their extreme seriousness under penal law;

(f) That, as proclaimed in article 11 of the Declaration, all persons deprived of liberty must be released in a manner permitting reliable verification that they have actually been released and, further, have been released in conditions in which their physical integrity and ability fully to exercise their rights are assured. 
UN Commission on Human Rights, Res. 2005/27, 19 April 2005, preamble and §§ 4(a), 5(c)–(d) and 6(a)–(b) and (f), adopted without a vote.

In a resolution adopted in 2005 on technical cooperation and advisory services in Nepal, the UN Commission on Human Rights:
Deeply concerned about the situation of human rights in Nepal, including violations attributed to the security forces, in particular … forced displacement and disappearances … and also deeply concerned about the prevailing situation of impunity,

8. Urges the Government of Nepal:
(a) To take all necessary measures to prevent and put an end to … enforced disappearances, arbitrary arrests, illegal incommunicado detention as well as torture and other cruel, inhuman or degrading treatment or punishment. 
UN Commission on Human Rights, Res. 2005/78, 20 April 2005, preamble and § 8(a), adopted without a vote.

UN Sub-Commission on Human Rights
In 1981, following the discovery of secret graves in Argentina, the UN Sub-Commission on Human Rights recommended that the International Law Commission be asked to include involuntary disappearances as a crime against humanity when drafting the Code of Crimes against the Peace and Security of Mankind. 
UN Sub-Commission on Human Rights, Res. 15 (XXXIV), 10 September 1981, § 3.

UN Commission on Human Rights (Chairman)
In 1996, in a statement on the situation of human rights in Colombia, the Chairman of the UN Commission on Human Rights noted that the Commission remained deeply preoccupied by the large number of cases of disappearance as shown in the report of the Working Group on the matter. 
UN Commission on Human Rights, Chairman’s statement on the situation of human rights in Colombia, UN Doc. E/CN.4/1996/SR.60, 23 April 1996, p. 12, § 4.

United Nations Verification Mission in Guatemala
In 1995, in his second report, the Director of MINUGUA recommended that the government of Guatemala “join in the efforts already under way in the international community, at the level of the United Nations and the Organization of American States, to ensure the recognition of enforced disappearance and extra-legal execution as crimes against humanity”. 
MINUGUA, Director, Second report, UN Doc. A/49/929, 29 June 1995, § 178.

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Council of Europe Parliamentary Assembly
In a resolution adopted in 1980 on the situation of human rights in Latin America, the Council of Europe Parliamentary Assembly stated that it was “profoundly alarmed by the disappearance of large numbers of people in such countries [Argentina, Chile, Uruguay, Guatemala and Cuba], including many children, pregnant women and foreign nationals” and invited the member countries of the Council of Europe to “promote, in a world context within the United Nations, the conclusion of an international convention designed to prevent and abolish disappearances, in particular by defining the guilt of those responsible for them”. 
Council of Europe, Parliamentary Assembly, Res. 722, 1 February 1980, §§ 5 and 11(e).

In a resolution adopted in 1981 on refugees from El Salvador, the Council of Europe Parliamentary Assembly stated that it was
appalled by the dramatic situation of the population suffering from violent and ruthless confrontation in which violence, disappearances and murders follow one another, affecting not only the combatants, but also all those who, one way or another, are caught up in events which do not concern them. 
Council of Europe, Parliamentary Assembly, Res. 751, 15 May 1981, § 7.

In a resolution adopted in 1982, the Council of Europe Parliamentary Assembly protested “in particular against the recourse by governments to emergency legislation as a means of covering up their repressive methods and against the practices of forcible disappearance”. 
Council of Europe, Parliamentary Assembly, Res. 774, 29 April 1982, § 5.

In a resolution on enforced disappearances adopted in 1984, the Council of Europe Parliamentary Assembly considered that “the recognition of enforced disappearance as a crime against humanity is essential if it is to be prevented and its authors punished”.  
Council of Europe, Parliamentary Assembly, Res. 828, 26 September 1984, § 12.

to support the preparation and adoption by the United Nations of a declaration setting forth the following principles:
i. Enforced disappearance is a crime against humanity which:
In a resolution adopted in 1985, the Council of Europe Parliamentary Assembly condemned “the systematic use by military governments and other totalitarian regimes in the subcontinent of brutal methods of repression, including … forced disappearances”. 
Council of Europe, Parliamentary Assembly, Res. 835, 30 January 1985, § 11.

European Parliament
In a resolution adopted in 1983 on missing persons in Argentina, the European Parliament urged Foreign Ministers to request from the Argentine government detailed information on the fate of those who had disappeared, including children. 
European Parliament, Resolution on missing persons in Argentina, 13 October 1983, p. 132, § 1(c).

In a resolution adopted in 1993, the European Parliament condemned the many serious human rights abuses in the world, including the alarming number of unresolved politically motivated disappearances, many of which had been perpetrated by paramilitary groups. 
European Parliament, Resolution on Human Rights in the world and Community human rights policy for the years 1991/92, 26 April 1993, Article 4.

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International Conference of the Red Cross (1981)
The 24th International Conference of the Red Cross in 1981 adopted a resolution on forced or involuntary disappearances. In its preamble, the resolution stated that such disappearances implied violations of fundamental human rights such as the right to life, freedom and personal safety, the right not to be submitted to torture or cruel, inhuman or degrading treatment, the right not to be arbitrarily arrested or detained, and the right to a just and public trial. The resolution condemned “any action resulting in forced or involuntary disappearances, conducted or perpetrated by governments or with their connivance or consent” and recommended that the ICRC and the Central Tracing Agency take appropriate action to “reveal the fate of missing persons or bring their families relief”. 
24th International Conference of the Red Cross, Manila, 7–14 November 1981, Res. II.

International Conference of the Red Cross (1986)
The 25th International Conference of the Red Cross in 1986 adopted a resolution on obtaining and transmitting personal data as a means of protection and of preventing disappearances in which it condemned “any act leading to the forced or involuntary disappearance of individuals or groups of individuals”. 
25th International Conference of the Red Cross, Geneva, 23–31 October 1986, Res. XIII, § 3.

World Conference on Human Rights
In the Vienna Declaration and Programme of Action, the World Conference on Human Rights in 1993 expressed its dismay and condemnation that “gross and systematic violations and situations that constitute serious obstacles to the full enjoyment of all human rights continue to occur in all parts of the world, [including] … disappearances”. 
World Conference on Human Rights, Vienna, 14–25 June 1993, Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23, 12 July 1993, § I(30).

International Conference of the Red Cross and Red Crescent (1999)
The Plan of Action for the years 2000–2003 adopted in 1999 by the 27th International Conference of the Red Cross and Red Crescent requested that all parties to an armed conflict take effective measures to ensure that “strict orders are given to prevent all serious violations of international humanitarian law, including … enforced disappearances … and threats to carry out such actions”. 
27th International Conference of the Red Cross and Red Crescent, Geneva, 31 October–6 November 1999, Res. I, Annex 2, Plan of Action for the years 2000–2003, Actions proposed for final goal 1.1, § 1(b).

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International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kupreškić case in 2000, the ICTY, in defining the constituent offences of the category of “other inhumane acts” as crimes against humanity, held:
Less broad parameters for the interpretation of “other inhumane acts” can instead be identified in international standards on human rights such as those laid down in the Universal Declaration on Human Rights of 1948 and the two United Nations Covenants on Human Rights of 1966. Drawing upon the various provisions of these texts, it is possible to identify a set of basic rights appertaining to human beings, the infringement of which may amount, depending on the accompanying circumstances, to a crime against humanity … Similarly, the expression at issue undoubtedly embraces … 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). Plainly, all these, and other similar acts, must be carried out in a systematic manner and on a large scale. In other words, they must be as serious as the other classes of crimes provided for in the other provisions of Article 5. 
ICTY, Kupreškić case, Judgment, 14 January 2000, § 566.

Human Rights Committee
In its General Comment on Article 4 of the 1966 International Covenant on Civil and Political Rights in 2001, the Human Rights Committee held:
In those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee’s opinion cannot be made subject to lawful derogation under article 4. Some illustrative examples are presented below.

The prohibitions against taking of hostages, abductions, or unacknowledged detention are not subject to derogation. The absolute nature of these prohibitions, even in times of emergency, is justified by their status as norms of general international law. 
Human Rights Committee, General Comment No. 29 (Article 4 of the 1966 International Covenant on Civil and Political Rights), 24 July 2001, § 13(b).

Human Rights Committee
In its concluding observations on the first periodic report of Honduras in 2006, the Human Rights Committee stated:
The Committee appreciates the State party’s efforts to identify cases of enforced disappearances, including the publication by the National Human Rights Commissioner of the preliminary report on enforced disappearances in Honduras in 1993, which contains a list of 183 disappeared persons. It is concerned, however, that the fact that enforced disappearance is not qualified as a crime in the Criminal Code has contributed to impunity and that the cases included in the aforementioned list have not yet been investigated, particularly in the light of the time that has elapsed since the publication of the report (articles 2 and 6 of the [1966 International Covenant on Civil and Political Rights]).
The State party should amend the Criminal Code in order to include the crime of enforced disappearance. It should also ensure that the cases of enforced disappearance are duly investigated, that those responsible are prosecuted and, where appropriate, punished and that the victims or their relatives receive fair and adequate compensation. 
Human Rights Committee, Concluding observations on the first periodic report of Honduras, UN Doc. CCPR/C/HND/CO/1, 13 December 2006, § 5.
[emphasis in original]
In Quinteros v. Uruguay in 1983, the Human Rights Committee found that Elena Quinteros was arrested, held in a military detention and subjected to torture, which constituted violations of Articles 7, 9 and 10(1) of the 1966 International Covenant on Civil and Political Rights. The Commission further held:
With regard to the violations alleged by the author on her own behalf, the Committee notes that, the statement of the author that she was in Uruguay at the time of the incident regarding her daughter, was not contradicted by the State party. The Committee understands the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. The author has the right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the [1966 International Covenant on Civil and Political Rights] suffered by her daughter in particular, of article 7. 
Human Rights Committee, Quinteros v. Uruguay, Views, 21 July 1983, §§ 12.3–14.

In Lyashkevich v. Belarus in 2003, the Human Rights Committee held:
The Committee understands the continued anguish and mental stress caused to the author, as the mother of the condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite. Complete secrecy surrounding the date of execution, and the place of burial and the refusal to hand over the body for burial have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ initial failure to notify the author of the scheduled date for the execution of her son, and their subsequent persistent failure to notify her of the location of her son’s grave amounts to inhuman treatment of the author, in violation of article 7 of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Lyashkevich v. Belarus, Views, 3 April 2003, § 9.2.

In Sarma v. Sri Lanka in 2003, the Human Rights Committee noted that the State Party had not denied the complainant’s claim that his son had been abducted by an officer of the Sri Lankan Army on 23 June 1990 and had remained unaccounted for since that date. The Human Rights Committee held:
The Committee notes the definition of enforced disappearance contained in article 7, paragraph 2 (i) of the Rome Statute of the International Criminal Court “‘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”. Any act of such disappearance constitutes a violation of many of the rights enshrined in the [1966 International Covenant on Civil and Political Rights], including the right to liberty and security of 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). 
Human Rights Committee, Sarma v. Sri Lanka, Views, 31 July 2003, § 9.3.

In Bousroual v. Algeria in 2006, the Human Rights Committee stated:
The Committee recalls the definition of enforced disappearance in article 7, paragraph 2 (i), of the Rome Statute of the International Criminal Court: 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. Any act of such disappearance constitutes a violation of many of the rights enshrined in the [1966 International Covenant on Civil and Political Rights], including the right to liberty and security of the person (art. 9), the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (art. 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 (art. 10). It also violates or constitutes a grave threat to the right to life (art. 6).  
Human Rights Committee, Bousroual v. Algeria, Views, 24 April 2006, § 9.2.

In Boucherf v. Algeria in 2006, the Human Rights Committee held:
9.2 The Committee recalls the definition of enforced disappearance in article 7, paragraph 2 (i), of the Rome Statute of the International Criminal Court: “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.” Any act of such disappearance constitutes a violation of many of the rights enshrined in the [1966 International Covenant on Civil and Political Rights], including the right to liberty and security of the person (art. 9), the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (art. 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 (art. 10). It also violates or constitutes a grave threat to the right to life (art. 6) …

9.5 As to the alleged violation of article 9, the information before the Committee reveals that Riad Boucherf was removed from his home by State agents. The State party has not addressed the author’s claims that her son's arrest and detention was arbitrary or illegal, or that he has been unaccounted for since 25 July 1995, other than submitting a general denial to the Committee. Under these circumstances, due regard must be given to the detailed information provided by the author. The Committee recalls that incommunicado detention as such may violate article 9, and again notes the author's claim that her son has been held incommunicado since 25 July 1995, without any possibility of access to a lawyer, or of challenging the lawfulness of his detention. In the absence of any pertinent clarification on this point from the State party, the Committee concludes that article 9 has been violated.
9.6 As to the alleged violation of article 7 of the Covenant, the Committee recognizes the degree of suffering involved in being held indefinitely without contact with the outside world. In this context, the Committee recalls its general comment No. 20, on article 7, which recommends that States parties should make provision against incommunicado detention. In the circumstances, the Committee concludes that the disappearance of the author's son and the prevention of contact with his family and with the outside world constitute a violation of article 7 of the Covenant. Further, the circumstances surrounding Riad Boucherf's disappearance and the several concordant testimonies that he was repeatedly tortured give rise to a strong inference that he was so treated. Nothing has been submitted to the Committee by the State party to dispel or counter such an inference. The Committee concludes that the treatment of Riad Boucherf amounts to a violation of article 7.
9.7 The Committee also notes the anguish and stress caused to the author by the disappearance of her son and the continued uncertainty concerning his fate and whereabouts. The Committee is therefore of the opinion that the facts before it reveal a violation of article 7 of the Covenant with regard to the author herself. 
Human Rights Committee, Boucherf v. Algeria, Views, 27 April 2006, §§ 9.2 and 9.5–9.7.

In Medjnoune v. Algeria in 2006, the Human Rights Committee noted:
The author states that he lodged a complaint concerning his son's disappearance with the prosecutor in Tizi-Ouzou on 2 October 1999. The complaint was registered as case No. 99/PG/3906. The prosecutor met the author on 15 October and 8 November 1999 and told him that he knew nothing of the abduction. Yet he did not order an investigation as required by law for an offence of that gravity. The son states that he was brought before the prosecutor on 4 March 2000, at the same time as another person (C.H.). He appeared before the same prosecutor a second time on 6 March 2000, again with that person, after which he was taken back to the DRS facility at Ben-Aknoun, where he was held for nearly two months by order of the prosecutor who had received the complaint of disappearance on 2 October 1999. Under Algerian law this constitutes an offence, and complicity in an offence, of abduction and false arrest under the Criminal Code, articles 292, 293 and 293 bis. Throughout this period, the son was held incommunicado in particularly inhumane conditions, for a full 218 days up to 2 May 2000, when he appeared before the examining magistrate of the Tizi-Ouzou court. The author points out that the legal duration of police custody under Algeria’s Code of Criminal Procedure is a maximum of 12 days. The author states that, on 2 May 2000, the examining magistrate charged his son with being an accessory to the murder of the Kabyle singer Matoub Lounès and with membership of an armed group, and that his son was placed in pretrial detention. 
Human Rights Committee, Medjnoune v. Algeria, Views, 9 August 2006, § 2.2.

In Grioua v. Algeria in 2007, the Human Rights Committee noted the author’s claim that her son had been arrested and imprisoned by State authorities in May 1996. Since that date there had been no official indication of her son’s whereabouts or fate, nor, indeed, any acknowledgment that he had been detained at all. The Human Rights Committee held:
The Committee recalls the definition of enforced disappearance in article 7, paragraph 2 (i), of the Rome Statute of the International Criminal Court: “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.” Any act leading to such disappearance constitutes a violation of many of the rights enshrined in the [1966 International Covenant on Civil and Political Rights], including the right to liberty and security of the person (art. 9), the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (art. 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 (art. 10). It also violates or constitutes a grave threat to the right to life (art. 6).  
Human Rights Committee, Grioua v. Algeria, Views, 16 August 2007, § 7.2.

In Kimouche v. Algeria in 2007, the Human Rights Committee noted the authors’ claim that their son had been arrested and imprisoned by State authorities in May 1996. Since that date there had been no official indication of the son’s whereabouts or fate, nor, indeed, any acknowledgment that he had been detained at all. The Human Rights Committee held:
Any act leading to such disappearance constitutes a violation of many of the rights enshrined in the [1966 International Covenant on Civil and Political Rights], including the right to liberty and security of the person (art. 9), the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (art. 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 (art. 10). It also violates or constitutes a grave threat to the right to life (art. 6). 
Human Rights Committee, Kimouche v. Algeria, Views, 16 August 2007, § 7.2.

In El Alwani v. Libyan Arab Jamahiriya in 2007, the Human Rights Committee held:
6.2 The Committee recalls the definition of enforced disappearance in article 7, paragraph 2(i), of the Rome Statute of the International Criminal Court: “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.” Any act leading to such disappearance constitutes a violation of many of the rights enshrined in the [1966 International Covenant on Civil and Political Rights], 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 (article10). It also violates or constitutes a grave threat to the right to life (article 6). …

6.7 With respect to the alleged violation of article 6, paragraph 1, the Committee recalls its General Comment 6 on article 6, which states, inter alia, that “The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.”
6.8 The Committee observes that sometime in 2003, the author was provided with his brother’s death certificate, without any explanation of the exact date, cause or whereabouts of his death or any information on investigations undertaken by the State party. In addition, the State party has not denied that the disappearance and subsequent death of the author’s brother was caused by individuals belonging to the Government's security forces. In the circumstances, the Committee finds that the right to life enshrined in article 6 has been violated by the State party. 
Human Rights Committee, El Alwani v. Libyan Arab Jamahiriya, Views, 29 August 2007, §§ 6.2 and 6.7–6.8.

In El Hassy v. Libyan Arab Jamahiriya in 2007, the Human Rights Committee held:
6.6 As to the alleged disappearance of the author’s brother, the Committee recalls the definition of enforced disappearance in article 7, paragraph 2(i), of the Rome Statute of the International Criminal Court: “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.” Any act leading to such disappearance constitutes a violation of many of the rights enshrined in the [1966 International Covenant on Civil and Political Rights], including the right to liberty and security of person (art. 9), the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (art. 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 (art. 10). It also violates or constitutes a grave threat to the right to life (art. 6).

6.8 In the present case, counsel has informed the Committee that the author’s brother disappeared in June 1996 at Abu Salim prison where he was last seen by the author himself and other detained, and that his family still does not know what has happened to him. In the absence of any comments by the State party on the author’s brother’s disappearance, the Committee considers that this disappearance constitutes a violation of article 7. 
Human Rights Committee, El Hassy v. Libyan Arab Jamahiriya, Views, 13 November 2007, § 6.6 and 6.8.

African Commission for Human and Peoples’ Rights
In 2001, in Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso, the African Commission for Human and Peoples’ Rights stated:
Article 5 of the [African Charter on Human and Peoples’ Rights] guarantees respect for the dignity inherent in the human person and the recognition of his legal status. This text further prohibits all forms of exploitation and degradation of man, particularly slavery, slave trade, torture cruel, inhuman or degrading punishment and treatment. The guarantee of the physical integrity and security of the person is also enshrined in Article 6 of the African Charter, as well as in the Declaration on the Protection of all Persons against Forced Disappearances, adopted by the General Assembly of the United Nations in Resolution 47/133 of 18th December 1992, which stipulates in article 1(2) that “any act leading to forced disappearance excludes the victim from the protection of the law and causes grave suffering to the victim and his family. It constitutes a violation of the rules of international law, especially those that guarantee to all the right to the recognition of their legal status, the right to freedom and security of their person and the right not be subjected to torture or any other inhuman or degrading punishment or treatment. It also violates the right to life or seriously imperils it”. The disappearances of persons suspected or accused of plotting against the instituted authorities, including Mr. Guillaume Sessouma and a medical student, Dabo Boukary, arrested in May 1990 by the presidential guard and who have not been seen since then constitute a violation of the above-cited texts and principles.  
African Commission for Human and Peoples’ Rights, Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso, Decision, 23 April–7 May 2001, § 44.

European Court of Human Rights
In Kurt v. Turkey in 1998, the European Court of Human Rights found that, following the disappearance of her son, the applicant was the victim of inhuman treatment. The Court held that she
… has been left with the anguish of knowing that her son had been detained and that there is a complete absence of official information as to his subsequent fate. This anguish has endured over a prolonged period of time.
134. Having regard to the circumstances described above as well as to the fact that the complainant was the mother of the victim of a human rights violation and herself the victim of the authorities’ complacency in the face of her anguish and distress, the Court finds that the respondent State is in breach of Article 3 [of the 1950 European Convention on Human Rights] in respect of the applicant. 
European Court of Human Rights, Kurt v. Turkey, Judgment, 25 May 1998, §§ 133–134.

In Timurtas v. Turkey in 2000, the European Court of Human Rights, considering the fact that the applicant was the father of the disappeared person, that he proceeded to make many enquiries in order to find out what had happened to his son, that the investigation lacked promptitude and efficiency, and that the applicant’s anguish concerning his son’s fate continued at the time of the judgment, found that the disappearance amounts to inhuman and degrading treatment contrary to Article 3 of the 1950 European Convention on Human Rights. 
European Court of Human Rights, Timurtas v. Turkey, Judgment, 13 June 2000, §§ 96–98.

In the Cyprus case in 2001, the European Court of Human Rights stated:
The Court recalls that the question whether a family member of a “disappeared person” is a victim of treatment contrary to Article 3 [of the 1950 European Convention on Human Rights] will depend on the existence of special factors which give the suffering of the person concerned a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human-rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond –, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court further recalls that the essence of such a violation does not so much lie in the fact of the “disappearance” of the family member but rather in the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct. 
European Court of Human Rights, Cyprus case, Judgment, 10 May 2001, § 156.

Inter-American Commission on Human Rights
In 1980, in a report on the situation of human rights in Argentina, the Inter-American Commission on Human Rights recommended that the government of Argentina hand over children who had disappeared to their natural parents or other close family members. 
Inter-American Commission on Human Rights, Report on the situation of human rights in Argentina, Doc. OEA/Ser.L/V/II.49, 11 April 1980, p. 7.

In 1987, in a case concerning Peru, the Inter-American Commission on Human Rights declared that the disappearance of a mayor following a charge of membership of the Sendero Luminoso (“Shining Path”) constituted a “very serious violation of the right to personal liberty (Article 7) and of the right to life (Article 4) set forth in the American Convention on Human Rights”. 
Inter-American Commission on Human Rights, Case 9466 (Peru), Resolution, 30 June 1987, p. 137, § 2.

In 1988, in a case concerning El Salvador, the Inter-American Commission on Human Rights “energetically condemned” the official practice of government security forces involving the forced detention and disappearance of individuals. 
Inter-American Commission on Human Rights, Case 9844 (El Salvador), Resolution, 13 September 1988, p. 144, § 2.

In 1988, in a case concerning Peru, the Inter-American Commission on Human Rights informed the Government of Peru that the forced disappearance of two persons, one by the Naval Infantry, the other by the Army Intelligence Service, constituted extremely serious violations of the right to personal freedom and the right to life. 
Inter-American Commission on Human Rights, Case 9786 (Peru), Resolution, 14 September 1988, p. 35, § 2.

In 1999, in a report on the human rights situation in Colombia, the Inter-American Commission on Human Rights noted that the forced disappearance of persons violated numerous rights protected under the 1969 American Convention on Human Rights and that the victims of forced disappearances were frequently civilians suspected of playing some role in the armed conflict. The Inter-American Commission on Human Rights added that in any case, State agents were absolutely prohibited from causing the disappearance of combatants as well as civilians. 
Inter-American Commission on Human Rights, Third report on the human rights situation in Colombia, Doc. OEA/Ser.L/V/II.102, 26 February 1999, § 218.

Inter-American Court of Human Rights
In its judgment in the Velásquez Rodrĭguez case in 1988, the Inter-American Court of Human Rights stated:
155. 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, all in violation of Article 7 of the [1969 American Convention on Human Rights] …
156. 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 …
In addition, investigations into the practice of disappearances and the testimony of victims who have regained their liberty show that those who are disappeared are often subjected to merciless treatment, including all types of indignities, torture and other cruel, inhuman and degrading treatment, in violation of the right to physical integrity recognized in Article 5 of the Convention.
157. The practice of disappearances often involves secret execution without trial, followed by concealment of the body to eliminate any material evidence of the crime and to ensure the impunity of those responsible. This is a flagrant violation of the right to life, recognized in Article 4 of the Convention …
158. The practice of disappearances, in addition to directly violating many provisions of the Convention, such as those noted above, constitutes a radical breach of the treaty in that it shows a crass abandonment of the values which emanate from the concept of human dignity and of the most basic principles of the inter-American system and the Convention. 
Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment, 29 July 1988, §§ 155–158.

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Restatement (Third) of the Foreign Relations Law of the United States
The Restatement (Third) of the Foreign Relations Law of the United States, adopted and promulgated by the American Law Institute in 1986, provides: “A state violates international law if, as a matter of state policy, it practices, encourages, or condones … (c) the murder or causing the disappearance of individuals”. 
The American Law Institute, Restatement Third. Restatement of the Foreign Relations Law of the United States, American Law Institute Publishers, St. Paul, 1987, § 702(c).

Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, states that “practising, permitting or tolerating the involuntary disappearance of individuals” shall remain prohibited. 
Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 30 November–2 December 1990, Articles 3(2)(d) and 4(1), IRRC, No. 282, 1991, pp. 331 and 332.