Rule 98. Enforced disappearance is prohibited.
Volume II, Chapter 32, Section K.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
International humanitarian law treaties do not refer to the term “enforced disappearance” as such. However, enforced disappearance violates, or threatens to violate, a range of customary rules of international humanitarian law, most notably the prohibition of arbitrary deprivation of liberty (see Rule 99), the prohibition of torture and other cruel or inhuman treatment (see Rule 90) and the prohibition of murder (see Rule 89). In addition, in international armed conflicts, the extensive requirements concerning registration, visits and transmission of information with respect to persons deprived of their liberty are aimed, inter alia, at preventing enforced disappearances (see Chapter 37). In non-international armed conflicts, parties are also required to take steps to prevent disappearances, including through the registration of persons deprived of their liberty (see Rule 123). This prohibition should also be viewed in the light of the rule requiring respect for family life (see Rule 105) and the rule that each party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and to provide their family members with information it has on their fate (see Rule 117). The cumulative effect of these rules is that the phenomenon of “enforced disappearance” is prohibited by international humanitarian law.
Although the articulation of the prohibition of enforced disappearance in military manuals and national legislation is in its early stages, the prohibition is expressly provided for in the military manuals of Colombia, El Salvador, Indonesia and Peru.
The legislation of many States also specifically prohibits this practice.
The 24th International Conference of the Red Cross in 1981 considered that enforced disappearances “imply violations of fundamental human rights such as the right to life, freedom and personal safety, the right not to be subjected 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 25th International Conference of the Red Cross in 1986 condemned “any act leading to the forced or involuntary disappearance of individuals or groups of individuals”.
The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, requested all parties to an armed conflict to take effective measures to ensure that “strict orders are given to prevent all serious violations of international humanitarian law, including … enforced disappearances”.
All these resolutions were adopted by consensus.
No official contrary practice was found in the sense that no State has claimed the right to enforce the disappearance of persons. In addition, alleged instances of enforced disappearances have generally been condemned by States and the United Nations. Disappearances during the conflict in the former Yugoslavia, for example, were condemned in UN Security Council debates in 1995 by Botswana, Honduras and Indonesia.
They were condemned in resolutions adopted by consensus by the UN Security Council and UN Commission on Human Rights.
The UN General Assembly also condemned enforced disappearances in the former Yugoslavia in a resolution adopted in 1995.
The General Assembly again condemned enforced disappearances in a resolution on Sudan adopted in 2000.
Under the Statute of the International Criminal Court, the systematic practice of enforced disappearance constitutes a crime against humanity.
The Inter-American Convention on the Forced Disappearance of Persons also prohibits enforced disappearance as “a grave and abominable offence against the inherent dignity of the human being” and states that it “violates numerous non-derogable and essential human rights”.
The UN Declaration on Enforced Disappearance, adopted by consensus, specifies that enforced disappearance constitutes a violation of 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 and that it violates or constitutes a grave threat to the right to life.
It is significant that in the Kupreškić case
in 2000, the International Criminal Tribunal for the former Yugoslavia found that enforced disappearance could be characterized as a crime against humanity, although it was not listed as such in the Tribunal’s Statute. The Tribunal took into account the fact that enforced disappearances consisted of the violation of several human rights and were prohibited under the UN Declaration on Enforced Disappearance and the Inter-American Convention on the Forced Disappearance of Persons. It therefore decided that it fell into the category of “other inhumane acts” provided for in Article 5(i) of its Statute.
In addition, regional human rights bodies found in several cases that enforced disappearances violate several rights. For example, the Inter-American Commission and Court of Human Rights have found that enforced disappearances violate the right to liberty and security of person, the right to fair trial and the right to life.
In addition, as stated in the UN Declaration on Enforced Disappearance, enforced disappearances inflict severe suffering, not only on the victims but also on their families.
The UN Human Rights Committee and the European Court of Human Rights have similarly found that the enforced disappearance of a close family member constitutes inhuman treatment of the next-of-kin.
The UN Human Rights Committee also stressed in its General Comment on Article 4 of the International Covenant on Civil and Political Rights that the prohibition of abductions and unacknowledged detention were not subject to derogation and stated that “the absolute nature of these prohibitions, even in times of emergency, is justified by their status as norms of general international law”.
It should therefore be noted that, although it is the widespread or systematic practice of enforced disappearance that constitutes a crime against humanity, any enforced disappearance is a violation of international humanitarian law and human rights law.
There is extensive practice indicating that the prohibition of enforced disappearance encompasses a duty to investigate cases of alleged enforced disappearance.
The duty to prevent enforced disappearances is further supported by the requirement to record the details of persons deprived of their liberty (see Rule 123).