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