Practice Relating to Rule 98. Enforced Disappearance

Note: For practice concerning accounting for the dead, see Rule 116. For practice concerning accounting for missing persons, see Rule 117. For practice concerning recording and notification of personal details of persons deprived of their liberty, see Rule 123. For practice concerning ICRC access to persons deprived of their liberty, see Rule 124.
Inter-American Convention on the Forced Disappearance of Persons
Article 1 of the 1994 Inter-American Convention on the Forced Disappearance of Persons provides:
The State Parties … undertake … not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees, … to cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons [and] to take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention. 
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, Article I.
Article 11 of the Convention further states:
Every person deprived of liberty shall be held in an officially recognized place of detention and be brought before a competent judicial authority without delay …The States Parties shall establish and maintain official up-to-date registries of their detainees and … shall make them available to relatives, judges, attorneys, any other person having a legitimate interest, and other authorities. 
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, Article XI.
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,
Determined to prevent enforced disappearances … ,
Article 17
1. No one shall be held in secret detention.
2. Without prejudice to other international obligations of the State Party with regard to the deprivation of liberty, each State Party shall, in its legislation:
(a) Establish the conditions under which orders of deprivation of liberty may be given;
(b) Indicate those authorities authorized to order the deprivation of liberty;
(c) Guarantee that any person deprived of liberty shall be held solely in officially recognized and supervised places of deprivation of liberty;
(d) Guarantee that any person deprived of liberty shall be authorized to communicate with and be visited by his or her family, counsel or any other person of his or her choice, subject only to the conditions established by law, or, if he or she is a foreigner, to communicate with his or her consular authorities, in accordance with applicable international law;
(e) Guarantee access by the competent and legally authorized authorities and institutions to the places where persons are deprived of liberty, if necessary with prior authorization from a judicial authority;
(f) Guarantee that any person deprived of liberty or, in the case of a suspected enforced disappearance, since the person deprived of liberty is not able to exercise this right, any persons with a legitimate interest, such as relatives of the person deprived of liberty, their representatives or their counsel, shall, in all circumstances, be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of the deprivation of liberty and order the person's release if such deprivation of liberty is not lawful.
3. Each State Party shall assure the compilation and maintenance of one or more up-to-date official registers and/or records of persons deprived of liberty, which shall be made promptly available, upon request, to any judicial or other competent authority or institution authorized for that purpose by the law of the State Party concerned or any relevant international legal instrument to which the State concerned is a party. The information contained therein shall include, as a minimum:
(a) The identity of the person deprived of liberty;
(b) The date, time and place where the person was deprived of liberty and the identity of the authority that deprived the person of liberty;
(c) The authority that ordered the deprivation of liberty and the grounds for the deprivation of liberty;
(d) The authority responsible for supervising the deprivation of liberty;
(e) The place of deprivation of liberty, the date and time of admission to the place of deprivation of liberty and the authority responsible for the place of deprivation of liberty;
(f) Elements relating to the state of health of the person deprived of liberty;
(g) In the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the remains;
(h) The date and time of release or transfer to another place of detention, the destination and the authority responsible for the transfer.
Article 18
1. Subject to articles 19 and 20, each State Party shall guarantee to any person with a legitimate interest in this information, such as relatives of the person deprived of liberty, their representatives or their counsel, access to at least the following information:
(a) The authority that ordered the deprivation of liberty;
(b) The date, time and place where the person was deprived of liberty and admitted to the place of deprivation of liberty;
(c) The authority responsible for supervising the deprivation of liberty;
(d) The whereabouts of the person deprived of liberty, including, in the event of a transfer to another place of deprivation of liberty, the destination and the authority responsible for the transfer;
(e) The date, time and place of release;
(f) Elements relating to the state of health of the person deprived of liberty;
(g) In the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the remains.
2. Appropriate measures shall be taken, where necessary, to protect the persons referred to in paragraph 1 of this article, as well as persons participating in the investigation, from any ill-treatment, intimidation or sanction as a result of the search for information concerning a person deprived of liberty.
Article 19
1. Personal information, including medical and genetic data, which is collected and/or transmitted within the framework of the search for a disappeared person shall not be used or made available for purposes other than the search for the disappeared person. This is without prejudice to the use of such information in criminal proceedings relating to an offence of enforced disappearance or the exercise of the right to obtain reparation.
2. The collection, processing, use and storage of personal information, including medical and genetic data, shall not infringe or have the effect of infringing the human rights, fundamental freedoms or human dignity of an individual.
Article 20
1. Only where a person is under the protection of the law and the deprivation of liberty is subject to judicial control may the right to information referred to in article 18 be restricted, on an exceptional basis, where strictly necessary and where provided for by law, and if the transmission of the information would adversely affect the privacy or safety of the person, hinder a criminal investigation, or for other equivalent reasons in accordance with the law, and in conformity with applicable international law and with the objectives of this Convention. In no case shall there be restrictions on the right to information referred to in article 18 that could constitute conduct defined in article 2 or be in violation of article 17, paragraph 1.
2. Without prejudice to consideration of the lawfulness of the deprivation of a person's liberty, States Parties shall guarantee to the persons referred to in article 18, paragraph 1, the right to a prompt and effective judicial remedy as a means of obtaining without delay the information referred to in article 18, paragraph 1. This right to a remedy may not be suspended or restricted in any circumstances.
Article 21
Each State Party shall take the necessary measures to ensure that persons deprived of liberty are released in a manner permitting reliable verification that they have actually been released. Each State Party shall also take the necessary measures to assure the physical integrity of such persons and their ability to exercise fully their rights at the time of release, without prejudice to any obligations to which such persons may be subject under national law.
Article 22
Without prejudice to article 6, each State Party shall take the necessary measures to prevent and impose sanctions for the following conduct:
(a) Delaying or obstructing the remedies referred to in article 17, paragraph 2 ( f ), and article 20, paragraph 2;
(b) Failure to record the deprivation of liberty of any person, or the recording of any information which the official responsible for the official register knew or should have known to be inaccurate;
(c) Refusal to provide information on the deprivation of liberty of a person, or the provision of inaccurate information, even though the legal requirements for providing such information have been met.
Article 23
1. Each State Party shall ensure that the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody or treatment of any person deprived of liberty includes the necessary education and information regarding the relevant provisions of this Convention, in order to:
(a) Prevent the involvement of such officials in enforced disappearances;
(b) Emphasize the importance of prevention and investigations in relation to enforced disappearances;
(c) Ensure that the urgent need to resolve cases of enforced disappearance is recognized.
2. Each State Party shall ensure that orders or instructions prescribing, authorizing or encouraging enforced disappearance are prohibited. Each State Party shall guarantee that a person who refuses to obey such an order will not be punished.
3. Each State Party shall take the necessary measures to ensure that the persons referred to in paragraph 1 of this article who have reason to believe that an enforced disappearance has occurred or is planned report the matter to their superiors and, where necessary, to the appropriate authorities or bodies vested with powers of review or remedy.  
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 17–23.
UN Declaration on Enforced Disappearance
Article 2(2) of the 1992 UN Declaration on Enforced Disappearance provides: “States shall act at the national and regional levels and in cooperation with the United Nations to contribute by all means to the prevention and eradication of enforced disappearance.” 
Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 47/133, 18 December 1992, Article 2(2).
Article 3 of the 1992 UN Declaration on Enforced Disappearance also provides: “Each State shall take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction.” 
Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 47/133, 18 December 1992, Article 3.
Article 9(1) of the 1992 UN Declaration on Enforced Disappearance further provides:
The right to a prompt and effective judicial remedy as a means of determining the whereabouts or state of health of persons deprived of their liberty and/or identifying the authority ordering or carry[ing] out the deprivation of liberty is required to prevent enforced disappearances under all circumstances. 
Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 47/133, 18 December 1992, Article 9(1).
Article 12(2) of the 1992 UN Declaration on Enforced Disappearance also provides:
Each State shall … ensure strict supervision, including a clear chain of command, of all law enforcement officials responsible for apprehensions, arrests, detentions, custody, transfers and imprisonment, and of other officials authorized by law to use force and firearms. 
Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 47/133, 18 December 1992, Article 12(2).
Article 20(1) of the Declaration further provides: “States shall prevent and suppress the abduction of children of parents subjected to enforced disappearance and of children born during their mother’s enforced disappearance.” 
Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 47/133, 18 December 1992, Article 20(1).
Peru
Peru’s Regulations to the Law on the National Information Register on Disappeared Persons (2003) states:
Any institution that processes information on persons located in health care centres, shelters, detention or internment centres must inform, subject to liability, the [National Information] Register [on Disappeared Persons] about the presence of such persons, without prejudice to the fulfilment of police requirements.
In the case of unidentified persons, the Register must be informed within 24 hours. 
Peru, Regulations to the Law on the National Information Register on Disappeared Persons, 2003, Article 17.
Colombia
In 2005, in the Constitutional Case No. C-473/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
The objective of the urgent tracing mechanism is for judicial authorities to immediately exercise every diligence for the purpose of finding out the location of those presumed missing. Therefore, … the urgent tracing mechanism has a preventive goal regarding the commission of the crime of enforced disappearance. 
Colombia, Constitutional Court, Constitutional Case No. C-473/05, Judgment of 10 May 2005, § 33.
Peru
In 2007, in the Chuschi case, the National Criminal Chamber of Peru’s Supreme Court of Justice stated:
[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 prevent … this crime against humanity. 
Peru, Supreme Court of Justice, National Criminal Chamber, Chuschi case, Case No. 105-04, Judgment of 5 February 2007, p. 121.
Ecuador
In November 1991, Ecuador reported to the Committee against Torture that an international commission set up to look into the disappearance of two brothers had recommended, following a finding of negligence and cover-up in the investigation, that the necessary measures be adopted to prevent similar cases occurring in the future. 
Committee against Torture, Report of the Committee against Torture, New York, 1992, UN Doc. A/47/44, § 60.
UN General Assembly
In a resolution adopted in 2004 on the question of enforced or involuntary disappearances, the UN General Assembly:
Urges all Governments to take appropriate legislative or other steps to prevent and suppress the practice of enforced disappearances, in keeping with the Declaration, and to take action to that end at the national and regional levels and in cooperation with the United Nations, including through the provision of technical assistance. 
UN General Assembly, Res. 59/200, 20 December 2004, § 2, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2001 on the question of enforced or involuntary disappearances, the UN Commission on Human Rights:
Invites States to take legislative, administrative, legal and other steps, including when a state of emergency has been declared, to take action at the national and regional levels and in cooperation with the United Nations, if appropriate through technical assistance, and to provide the Working Group with concrete information on the measures taken and the obstacles encountered in preventing enforced, involuntary or arbitrary disappearances and in giving effect to the principles set forth in the [1992] Declaration [on Enforced Disappearance]. 
UN Commission on Human Rights, Res. 2001/46, 23 April 2001, § 7, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on the question of enforced or involuntary disappearances, the UN Commission on Human Rights:
Invites States to take legislative, administrative, legal and other steps, including when a state of emergency has been declared, to take action at the national and regional levels and in cooperation with the United Nations, if appropriate through technical assistance, and to provide the Working Group with concrete information on the measures taken and the obstacles encountered in preventing enforced or involuntary disappearances and in giving effect to the principles set forth in the Declaration. 
UN Commission on Human Rights, Res. 2003/38, 23 April 2003, § 7, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on enforced or involuntary disappearances, the UN Commission on Human Rights:
Invites States to take legislative, administrative, legal and other steps, including when a state of emergency has been declared, to take action at the national and regional levels and in cooperation with the United Nations, if appropriate through technical assistance, and to provide the Working Group with concrete information on the measures taken and the obstacles encountered in preventing enforced or involuntary disappearances and in giving effect to the principles set forth in the Declaration. 
UN Commission on Human Rights, Res. 2004/40, 19 April 2004, § 9, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on enforced or involuntary disappearances, the UN Commission on Human Rights:
4. Urges States:
(c) To prevent the occurrence of enforced disappearances, including by guaranteeing that any person deprived of liberty is held solely in officially recognized and supervised places of detention, guaranteeing access to all places of detention by authorities and institutions whose competence in this regard has been recognized by the concerned State, maintaining official, accessible, up-to-date registers and/or records of detainees and ensuring that detainees are brought before a judicial authority promptly after detention;
(d) To work to eradicate the culture of impunity for the perpetrators of enforced disappearances and to elucidate cases of enforced disappearances as crucial steps in effective prevention;
8. Invites States to take legislative, administrative, legal and other steps, including when a state of emergency has been declared, to take action at the national and regional levels and in cooperation with the United Nations, if appropriate through technical assistance, and to provide the Working Group with concrete information on the measures taken and the obstacles encountered in preventing enforced or involuntary disappearances and in giving effect to the principles set forth in the Declaration.  
UN Commission on Human Rights, Res. 2005/27, 19 April 2005, §§ 4(c)–(d) and 8, adopted without a vote.
UN Commission on Human Rights
In April 1996, in a statement on the situation of human rights in Colombia, the Chairman of the UN Commission on Human Rights called for the urgent adoption of more effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance. 
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.
UN Sub-Commission on Human Rights
In a resolution adopted in 1985, the UN Sub-Commission on Human Rights adopted a draft Declaration against Unacknowledged Detention which stated:
Governments shall, (a) disclose the identity, location and condition of all persons detained by members of their police, military or security authorities or others acting with their knowledge, together with the cause of such detention, and (b) seek to locate all other persons who have disappeared. In countries where legislation does not exist to this effect, steps shall be taken to enact such legislation as soon as possible. 
UN Sub-Commission on Human Rights, Res. 1985/26, 29 August 1985, § 2.
No data.
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 which it urged governments to “endeavour to prevent forced or involuntary disappearances and to cooperate with humanitarian organizations with a view to putting an end to that phenomenon”. 
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 urged governments “to endeavour to prevent [forced or involuntary disappearances]”. 
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 welcomed “the adoption by the General Assembly of the Declaration on the Protection of All Persons from Enforced Disappearance” and called upon all States “to take effective legislative, administrative, judicial or other measures to prevent, terminate and punish acts of enforced 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, § II(62).
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).
Human Rights Committee
In its General Comment on Article 6 of the 1966 International Covenant on Civil and Political Rights in 1982, the Human Rights Committee held:
States parties should … take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life. 
Human Rights Committee, General Comment No. 6 (Article 6 of the 1966 International Covenant on Civil and Political Rights), 30 July 1982, § 4.
Human Rights Committee
In Herrera Rubio v. Colombia in 1987, the Human Rights Committee found that Colombia had violated the 1966 International Covenant on Civil and Political Rights, on the basis that it had failed to take appropriate measures to prevent the disappearance of two persons suspected of subversive activities. 
Human Rights Committee, Herrera Rubio v. Colombia, Views, 2 November 1987, p. 198, § 11.
Human Rights Committee
In Bousroual v. Algeria in 2006, the Human Rights Committee stated:
The Committee refers to its general comment No. 6 (16) concerning article 6 of the [1966 International Covenant on Civil and Political Rights], which provides inter alia that States parties should take specific and effective measures to prevent the disappearance of individuals and establish facilities and procedures to investigate thoroughly, by an appropriate impartial body, cases of missing and disappeared persons in circumstances which may involve a violation of the right to life. In the present case, the Committee notes that the State party does not deny that the author’s husband has been unaccounted for since at least 29 July 1995, when the judgement in absentia was handed down by the criminal division of the Court of Constantine. As the State party has not provided any information or evidence relating to the victim’s release from the Territorial Centre, the Committee is of the opinion that the facts before it reveal a violation of article 6, paragraph 1, in that the State party failed to protect the life of Mr. Saker. 
Human Rights Committee, Bousroual v. Algeria, Views, 24 April 2006, § 9.11.
Inter-American Commission on Human Rights
In its Annual Report 1980–1981, the Inter-American Commission on Human Rights recommended that arrests only be made by competent and duly identified authorities and that detained persons be kept in premises designed for that purpose. 
Inter-American Commission on Human Rights, Annual Report 1980–1981, Doc. OEA/Ser.L/V/II.54 Doc. 9 rev. 1, 16 October 1981, pp. 113 and 129; see also Report on the situation of human rights in Argentina, Doc. OEA/Ser.L/V/II.49 Doc. 19, 11 April 1980, p. 264, Report on the situation of human rights in Chile, Doc. OEA/Ser.L/V/II.66 Doc. 17, 9 September 1985, § 126 and Report on the situation of human rights in Peru, Doc. OEA/Ser.L/V/II.83 Doc. 31, 12 March 1993, p. 60.
Inter-American Commission on Human Rights
In its doctrine concerning judicial guarantees and the right to personal liberty and security published in 1982, the Inter-American Commission on Human Rights recommended that States take all necessary measures to prevent security forces from arresting and detaining persons without the knowledge of the competent authorities and the relatives of the prisoner. Among such measures, the Commission mentioned:
Close vigilance by the high officials and by the Judicial Branch over the actions of the security forces; periodic visits to the places described as illegal detention centers and imposition of severe sanctions on members of these forces who give an evasive or false reply to requests for information about persons they have detained. 
Inter-American Commission on Human Rights, Doctrine concerning judicial guarantees and the right to personal liberty and security, reprinted in Ten years of activities (1971–1981), General Secretariat of the Inter-American Commission on Human Rights, Washington, D.C., 1982, p. 319.
ICRC
According to the ICRC, in order to prevent disappearances, the identity of persons arrested must be established as soon as possible after their arrest/capture and a follow-up on their whereabouts must be carried out. Within the framework of its protection activities, the ICRC always registers and follows up on persons deprived of their liberty. The registration of persons deprived of their liberty and the repetition of visits enables the ICRC to keep track of the persons concerned until their release. In registering a person deprived of his/her liberty, the ICRC takes on the responsibility of monitoring that person’s situation conscientiously. The regularity of follow-up visits is defined according to a particular person’s protection needs. If, during a visit, a person turns out to be absent, the ICRC asks the authorities to explain his/her whereabouts.
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 “unacknowledged detention” shall remain prohibited. It adds: “All persons deprived of their liberty shall be held in recognized places of detention.” 
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.