Related Resources
Nacht und Nebel Erlass - Night and Fog Decree view details >>
The 1992 Declaration for Protection of All People from Enforced Disappearence view details >>
Background
In Nazi Germany the Nacht und Nebel Decree of 1941 made it possible for the security units of the Nazi regime to arrest people at night who were simply made to vanish, never to reappear. Similarly, in Chile and Argentina, young students and opponents of the military junta were arrested by unidentified security groups. The state officials would deny that they had anything to do with these detentions. Almost none of these youngsters ever resurfaced.
Tens of thousands of people in more than 70 countries throughout the world have vanished following their arrest and, in most cases, states keep denying their involvement, hiding the truth and protecting the perpetrators. These cases are known as enforced disappearances. The circumstances under which these disappearances occurred differ greatly from country to country but the suffering, uncertainty and fear of those involved is always horrendous.
Elements of an enforced disappearance
In the past, enforced disappearances have been treated as a violation of multiple human rights, like the rights of freedom, life, physical integrity, security and fair legal process. Increasingly, however, the international community considers an enforced disappearance as a specific human rights violation. This culminated in the Convention Against Disappearances.
The definition of an enforced disappearance has experienced variations in its evolution through international law of the human rights and international penal law. It is of general opinion that this crime should contain, at least, the following elements:
- Deprivation of of freedom in any way.
- Refusal to recognize deprivation of freedom.
- As consequence of the two above elements, the exclusion of the disappeared person of the protection of the law and all recognized universal rights.
- The person disappeared as a consequence of an open act by the State, or with the acquiescence of the State.
All international instruments refer to this element. However there is no consensus on whether an enforced disappearance can only be perpetrated by the State, or whether it can also be perpetrated by a non-state actor without any consent or acquiescence of the State. Undoubtedly it is vital to have a definition in order to establish the responsibility of the State in the disappearances as violations of the human rights, and to prosecute the individuals committing or facilitating the disappearances.
According to the new International Convention for the Protection of All Persons from Enforced Disappearance, each State Party shall take appropriate measures to investigate acts leading to enforced disappearances committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice.
Best Known Definitions
According to the Declaration on the Protection of All Persons from Enforced Disappearance, proclaimed by the General Assembly in its resolution 47/133 of 18 December 1992, an enforced disappearance occurs when "persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups, or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law."
According to the Inter-American Convention on Forced Disappearance of Persons approved by the General Assembly of the Organization of American States an enforced disappearance is "the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees."
The Rome Statute of the International Criminal Court defines enforced disappearances 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."
Finally, the International Convention for the Protection of All Persons from Enforced Disappearances gives the following definition of the crime:"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."