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Annual
Report,
1978, pp 24–27.
72
Re Estate of Marcos,
25 F 3d, at 1745;
Forti v Suarez-Mason,
672 F Supp 1531, at 1542 (1987),
amended,
694 F Supp 707, at 710–11 (1989).
73
AG/Res 666 (18 November 1983).
74
9 ILM (1970), 673.
75
Velasquez Rodriguez
case (Merits) (29 July 1988) (1988) 95 ILR 232.
76
GA Res 47/133 (18 December 1992).
77
33 ILM (1994), 1259.
International Criminal Law
124
humanity, the 1992 Declaration makes no such statement, but instead provides that
it shall be considered as an offence under domestic criminal law (Art 4), to which
the defence of superior orders is not applicable (Art 6).
By its very nature, the ‘practice’ of enforced disappearances is a serious and
systematic attack against a dissenting civilian population, within a State, and as
such qualifies as a crime against humanity. However, although the jurisprudence of
the ad hoc tribunals and the ICC Statute clearly suggest that crimes against humanity
can be committed by non-State agents, enforced disappearances can only be
committed by public officials or persons authorised by the State. Abduction of persons
by non-State actors would constitute the offence of kidnapping or hostage taking,
depending on the facts of each case, but not the offence of involuntary
disappearances. The
actus reus
of the offence may commence lawfully, that is through
initial arrest of the victim by duly authorised government forces. The crime is not
completed with the unlawful arrest or abduction of the victim by government agents,
but by the intentional and unlawful deprivation of the victim’s liberty, coupled with
a refusal to disclose his or her whereabouts. The latter component of the crime (that
is, non-disclosure) may take place while the victim is otherwise lawfully detained.
In its General Comment No 20, the Human Rights Committee held that in order to
guarantee the effective protection of detained persons, provision should be made
by States for detainees to be held in places officially recognised as places of detention,
as well as for the names of persons responsible for their detention to be kept in
registers made available to those concerned, including relatives and friends.
Furthermore, the time, place and names of all present in the interrogation must be
recorded.
78
Besides qualifying as a crime against humanity, the practice of enforced
disappearances may well qualify as torture if the relevant criteria pertaining to the
crime of torture are satisfied. As already noted, the crime of torture need not be
committed only by State agents, but also by private individuals. Although
involuntary disappearances do not constitute a particular violation of the European
Convention of Human Rights, the ECHR pointed out in the case of
Kurt v Turkey
that
forced disappearance is a violation of Art 3 of the Convention, prohibiting torture,
cruel and inhuman treatment, which as a result caused extreme suffering to the
victim’s mother.
79
Although all offences against the person have an emotional impact
on the family or circle of friends of the victim, this is usually incidental to the
underlying crime. In the case of forced disappearances, one of the aims of the
perpetrators is to terrorise or otherwise intimidate those close to the victim but also,
in a significant number of cases, a larger segment of the population. Thus, the practice
of disappearance as torture could be substantiated not only vis-à-vis the victim, but
also against his or her relatives or friends.
Finally, mention should be made of the jurisdictional aspects of the offence. Both
the Draft Convention on Enforced Disappearances, currently contemplated by the
United Nations, and the 1994 Inter-American Convention proclaim a broad
78
General Comment No 20, UN Doc CCPR/C/21/Rev 1/Add 3 (7April 1992), para 11; similar provision
is stipulated in Arts 8–12 of the 1992 Declaration.
79
Kurt v Turkey,
Judgment (25 May 1998), Case No 15/1997/799/1002, para 134.
Chapter 5: Offences Against the Person
125
jurisdictional basis, which however falls short of universal jurisdiction. Much like
Art 14 of the 1992 Declaration, these instruments at best provide for the exercise of
permissive rather than compulsory jurisdiction.
80
Only one of these instruments is
legally binding, the 1994 Inter-American Convention on the Forced Disappearance
of Persons, and that is limited to eight States. On the other hand, if a particular case
of enforced disappearances is classified as a crime against humanity, universal
jurisdiction would be available under customary international law. Whereas the same
is not true with regard to the same practice characterised as torture, the broad exercise
of jurisdiction, akin to universal, would be permissible as long as other States claiming
closer links with the case do not raise objections.
80
N Rodley,
Treatment of Prisoners,
1999, Oxford: Clarendon, p 269.
CHAPTER 6
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