3. Those responsible refused to acknowledge the detention, or concealed the
concerned person’s fate or whereabouts, placing the person outside the
protection of the law.75
If corroborated information pertaining to any of these three elements fails
to reach the reasonable grounds standard, the investigative body will not
find the State, nor any individual, responsible for the violation of enforced
disappearance.
Example 2: International criminal law
An investigative body using the same standard has collected evidence that a
party to a non-international armed conflict launched an attack directed against
civilians.76 It has also uncovered the name of the commander who led the unit
that undertook the attack. In determining whether to identify the commander
as responsible for a violation, there would need to be reasonable grounds to
believe that:
1. The commander directed the attack;77
2. The object of the attack was a civilian population as such or individual
civilians not taking direct part in hostilities;
3. The commander intended the civilian population as such or individual
civilians not taking direct part in hostilities to be the object of the attack;
4. The conduct took place in the context of and was associated with an armed
conflict not of an international character; and
5. The commander was aware of factual circumstances that established the
existence of an armed conflict.
International Convention for the Protection of All Persons from Enforced Disappearance, art. 2. In this
example the CoI is not alleging a crime against humanity, so the chapeaux and other elements of that
crime are excluded.
76
Recall that for this body of law to apply, the chapeaux elements relating to “armed conflict” must also be
met. See supra section 3 A.
77
This example employs the substantive law from art. 8 (2) (e) (i) of the Rome Statute. The mode of liability
is “direct commission”. The mens rea comprises intent and knowledge (awareness).
75
COLLECTING AND ANALYSING THE INFORMATION
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