Non-State actors: The involvement of States in ED is
one of the essential elements of this crime. However, increasingly in recent decades, non-State actors
have resorted to the use of acts which are analogous to ED. At the time of publishing this report,
discussions are ongoing within and between treaty
bodies at international and regional levels as to the
appropriate legal principles to be applied to such
acts and such perpetrators. Additionally, ED can be
committed by “de facto authorities”, such as rebel
and insurgent groups, which exercise prerogatives
that are comparable to those normally exercised by
legitimate governments.7
The prohibition on ED in
international human rights law
The UN General Assembly adopted the Declaration
on the Protection of all Persons from Enforced Disappearance in 1992 (the “1992 Declaration”). Whilst
not binding on States, it was the first formal signal
from the UN that ED is a human rights violation distinct from other human rights violations and, in that
regard, it sets out clear standards for all States to
adhere to in order to prevent, protect against and
punish the perpetrators of ED.2
Building on the 1992 Declaration, the UN General
Assembly adopted the ICPPED in 2006, entering into
force in 2010. It defines ED as “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 authorisation, 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 person outside the protection of the
law”.3 This is the most commonly used definition in
international law.4
“Short-term disappearances”: There is no minimum
time limit for a disappearance to qualify as an ED. As
such, “short-term disappearances” can result from
the unacknowledged deprivation of liberty which
puts the individual concerned outside the protection
of the law for a limited amount of time.8
Relationship with International
Humanitarian Law
The term “missing person” is usually considered to be
broader than that of “person subjected to enforced
disappearance”. The ICRC has drafted guidelines on
the concept of “missing person” or “person unaccounted for”, meaning a person reported missing in
connection with an international armed conflict, civil
war or internal violence or unrest.9 In some situations,
missing persons can also be victims of ED, and often
these two terms are used interchangeably. However, while “missing person” does not always imply the
commission of a crime, ED is always a crime, one that
requires State involvement and a crime that constitutes violations of multiple human rights.10
Key concepts and issues in
the human rights regime
Victims: The ICPPED defines the term “victim” as the
disappeared person and any other individual who has
suffered harm as the direct result of an ED.5 As such,
in the context of ED, the term “victim” encompasses a broad definition that includes the relatives or
dependents of the person who has disappeared (i.e.
the immediate victim) and persons who have suffered
harm in intervening to assist victims in distress, or to
prevent victimisation.6
2
3
4
UN General Assembly (“UNGA”), Declaration for the Protection of All Persons from Enforced Disappearance, A/RES/47/133, 18 December 1992.
International Convention for the Protection of All Persons from Enforced Disappearance (“"ICPPED"), Article 2.
See, for example, Jurgen Schurr, Position Paper on the Rationale for Guidelines on Enforced Disappearance in Africa, finalised on 13 December
2016, para. 27.
5 ICPPED, Article 24(1).
6 UN Human Rights Committee (“HRCt”), Report of the Working Group on Enforced or Involuntary Disappearances (“WGEID”) (A/HRC/22/45), 28
January 2013, paras. 51 and 52.
7 For example, the WGEID noted in 2019: “For a number of years, the Working Group has been receiving information about increasing instances of
abductions carried out by non-State actors, which may be tantamount to acts of enforced disappearances. In light of its humanitarian mandate
and the fact that the victims of these acts do not have any remedy to address their plight, the Working Group has decided to document cases
concerning enforced or involuntary disappearances allegedly perpetrated by non-State actors that exercise effective control and/or governmentlike functions over a territory”, Report of the WGEID (A/HRC/42/40), 30 July 2019, para. 94.
8 Report of the WGEID (A/HRC/42/40), 30 July 2019, para. 90; Committee on Enforced Disappearances (“CED”), Views approved by the CED under
article 31 of the Convention for communication No. 1/2013; Yrusta v. Argentina, CED/C/10/D/1/2013, para. 10.3.
9 International Committee of the Red Cross (“ICRC”), Guiding Principles/Model Law on the Missing, 2009, Article 2(1).
10 Council of Europe, Commissioner for Human Rights, Missing Persons and Victims of Enforced Disappearance in Europe, Issue Paper, March 2016,
pp. 17-18.
12
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