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Prevention of enforced disappearances

States have the obligation to prevent that enforced disappearances take place. Prevention of this crime should be done in different ways:

  • Codifying enforced disappearances as an autonomous offense under their criminal law;
  • Establish sanctions proportionate to the seriousness of this offense;
  • Adopting existing internal legislation to enable their courts to exercise universal jurisdiction over enforced disappearances (crimes under international law)
  • Adopting relevant legislative measures to make sure that international tribunals (ICC in particular) are recognized.
  • Providing under their legislation that human rights violations are excluded from military tribunals. They should come under the ordinary domestic courts jurisdiction or under international or an internationalized criminal court jurisdiction (e.g.: ICC)
  • Providing that public officials and employees personally responsible for violations of human rights are discontinued from serving in State institutions
  • Establishing civil complaint procedures

Amnesty laws

Amnesty laws (laws that retrospectively absolve a group of people, usually military and government leaders from criminal liability for their crimes) and similar measures could facilitate enforced disappearances and promote impunity. They must be abolished if results of their application and implementation are:

  • Ending the States’ obligations to investigate, prosecute and punish
  • Preventing adequate rehabilitation, compensation and reparation
  • Hide the names of the perpetrators
  • Excuse the perpetrators of disappearances, therefore having no obligation to indemnify the victim
  • Dismissing criminal proceedings or closing investigations or imposing insignificant sanctions.

If amnesty laws are adopted it should be done with limitations like:

  • Criminal sanctions must not be completely eliminated
  • Pardons should only be granted after a peace process
  • Perpetrators should only benefit from such laws if the state has fully investigated the relevant circumstances concerning disappearances, and ensure the satisfaction of the right to justice, truth and compensation of the victims

Anti-terror laws

Although Anti-terror laws are a necessary tool to fight terrorism, they should always be carried out in respect of international law, refugee and international humanitarian law.

The 2004 Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism is a fundamental instrument in this respect. It sets the following minimum standards:

  • All States have an obligation to respect and to ensure the fundamental rights and freedoms of person within their jurisdiction
  • In the development and implementation of counter-terrorism measures, States have the obligation to guarantee the independence of the legal system and its role in reviewing State conduct.
  • States must ensure that persons suspected of involvement in terrorism are only charged with crimes that are strictly defined by law.
  • States must not suspend rights that are non-derogable under treaty or customary law
  • States must always observe the prohibition against torture and cruel, inhuman or degrading treatment.
  • States must never detain anyone secretly or incommunicado and must maintain a register of all detainees
  • States must ensure, that declared offenders are tried only by an independent and impartial tribunal established by law and that they are accorded full fair trial guarantees
  • States must ensure that persons affected by counter-terrorism measures have effective compensation.