Enforced disappearance is one of the violent methods used by states with a history of coup d’états, civil wars and internal conflicts to suppress dissent. The conceptualization of the practice has developed in the same international context as impunity and has been carried out by similar actors. In the 1970s and 80s, states widely used enforced disappearances as a strategy to target different segments of society such as workers, peasants, students and unionists who have been expressing themselves as political subjects in Latin American countries such as Brazil, Uruguay, Chile, Peru, Guatemala and Argentina. The unique character of the violation has led to a need to define a new concept that is different from other forms of violation such as torture or illegal and arbitrary executions which have been previously used. [1]
Although the concept is new, this strategy is not exclusive to the continent or that period. The practice of enforced disappearance, which has been used during the 1960s in Guatemala for the first time, has later been employed in various geographies such as the Philippines, El Salvador, Sri Lanka and Syria. The earliest example of enforced disappearances is the decree ‘Night and Fog’ issued by Hitler on 7 December 1941. With this decree, those who resisted Nazi occupation were tried in ‘special’ courts, instead of military courts, without the knowledge of their relatives and they were often forcefully disappeared or executed. [2]
Today, important steps have been taken to tackle with state policies of enforced disappearance in Latin America. On the other hand, in countries with a high number of cases such as Sri Lanka, the Philippines, Peru, Nepal, Iraq, Iran, Guatemala, El Salvador, Chile, Argentina and Algeria, most of the cases that happened in the period between 1980 and 2000, some of which were on a massive scale, are still unsolved. [3] Furthermore, in today’s ever-changing global political atmosphere and with the beginning of the War on Terror policy following 9/11, we still see enforced disappearances as a practice that continues in various forms and under different dynamics. [4]
Description
According to the International Convention for the Protection of All Persons from Enforced Disappearances, the term enforced disappearance is ‘… considered to be 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 authorization, 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 a person outside the protection of the law.’
For this reason, enforced disappearance is defined by three distinguishing factors that complement each other:
- Deprivation of liberty against the will of the person;
- Involvement of state officials, at least by acquiescence,
- Refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person.
Elements of the crime
Use of force: The crime recognized as enforced disappearance in international literature is usually referred to as ‘missing’ or ‘missing under custody’ in Turkey. The reason behind this is the fact that people are taken under custody by the public officials and they are forcefully disappeared afterwards even though they are told that they will be released after their statements are taken. Enforced disappearance is a much more proper term to define the act because this term refers to the use of force, which is a characteristic of the offense, and differentiates the act from other forms of disappearance. [5]
Torture: According to international jurisprudence, enforced disappearance is a form of torture. This is not only true for the missing person, but also for her family. For example, the Inter-American Court of Human Rights states that ‘prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment’ for the disappeared person. In its judgment Kurt v. Turkey of 25 May 1998, the European Court of Human Rights stated that: “The uncertainty, doubt and apprehension suffered by the applicant (the mother of the disappeared person) over a prolonged and continuing period of time caused her severe mental distress and anguish.” [6]
The continuity of the crime: According to the UN Working Group, one of the distinguishing characteristics of enforced disappearances is that it is a continuous offense. In this definition, the offense begins at the time of the abduction and extends for the whole period of time until the state acknowledges the detention or release of the individual. For this reason, enforced disappearance is a continuous crime that extends until the fate of the individual is found out. For this reason, a state is held as responsible for having committed an enforced disappearance that began before the entry into force of the relevant national or international legal instrument.[7]
Crime against humanity: The International Convention on the Protection of All Persons against Enforced Disappearance sees enforced disappearance as a crime against humanity. According to the case-law of international criminal law, the contextual conditions of the crime against humanity are the following: (a) There has been an “attack”; (b) the attack must be targeting a civilian population; (c) the attack must have been widespread or systematic; (d) the perpetrator had knowledge of the attack. It is considered that enforced disappearance, by its definition, has these elements.
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[1] Zalaquett, J. “The emergence of ‘disappearances’ as a normative issue, Proceedings of a Research Workshop Gerald R. Ford School of Public Policy University of Michigan”, 2010. http://humanrightshistory.umich.edu/files/2012/07/Zalquette.pdf
[2] United States Holocaust Memortial Museum, Holocaust Encyclopedia. http://www.ushmm.org/wlc/en/article.php?ModuleId=10007465
[3] Dinçer, H. “Making Enforced Disappearances Visible: The International Convention on the Protection of All Persons Against Enforced Disappearance” 2011:4. http://hakikatadalethafiza.org/wp-content/uploads/Cust/UserFiles/Docume…;
[4] Göral, Ö. S., Kaya, Ö., “Unspoken Truth: Enforced Disappearances”, Truth Justice Memory Center, 2013:16. http://hakikatadalethafiza.org/kaynak/konusulmayan-gercek-zorla-kaybetm…;
[5] Ibid, p. 15
[6] International Federation of ACAT, “Links Between Torture and Enforced Disappearances”, http://www.fiacat.org/links-between-torture-and-enforced-disappearances (Date of Access: 26 August 2015)
[7] Working Group on Enforced or Involuntary Disappearances (2011), General Comment on Enforced Disappearance as a Continuous Crime. https://hakikatadalethafiza.org/en/kaynak/general-comment-on-enforced-d…