Investigating and punishing the crime of enforced disappearance is no less important than holding States responsible for this grave human rights violation. Still, comparatively little work has been done on the former compared to the latter, where there have been significant advances in doctrine and jurisprudence. Due to widespread impunity and various failed efforts to establish criminal responsibility, enforced disappearance has so far proven to be a “perfect” crime.
It is therefore truly remarkable that enforced disappearance as a crime was discussed in two panels of the first World Congress on Enforced Disappearances (on international accountability and universal jurisdiction) in Geneva, Switzerland, on Jan. 15-16. The conversation will continue through various other initiatives, including in Paris from Jan. 30 to 31, at the 10èmes Journées de la Justice pénale internationale, and at the seminar on strategies and prospects for the prosecution of enforced disappearances later this year. Different challenges have so far stood in the way of achieving individual criminal accountability for enforced disappearance before domestic courts–both as a discrete crime and as an underlying offense of a crime against humanity (for the definitions, see Articles 2 of the International Convention on the Protection of All Persons from Enforced Disappearances (ICPED) and 7(2)(i) of the Rome Statute). Ideally, such discussions about the pressing challenges and central importance of bringing the perpetrators to justice may lay the groundwork for more domestic investigations and prosecutions in the (near) future.
Lack of Domestic Criminalization and Political Will
Enforced disappearance has a poor record of criminal convictions (some judgments are available in the database here). One reason is the lack of domestic criminalization of enforced disappearance as a separate offense, or, less often, as an underlying offense of a crime against humanity. In this respect, and despite the tendency of the human rights bodies to state the contrary, the ICPED does not impose an obligation to criminalize enforced disappearance as defined in its Article 2. However, since States parties to the ICPED are obliged to adopt a definition that allows them to comply with their obligations under the Convention, the most convincing conclusion is that each State should introduce a separate offense of enforced disappearance in its domestic legislation.
The lack of criminal justice for enforced disappearance may also be due to the absence of any genuine interest in pursuing criminal proceedings. This is somewhat unsurprising given the structure of the definition of enforced disappearance in most countries, which requires a certain degree of State involvement in the crime. Especially when those involved in carrying out the enforced disappearance are still in power and control the judiciary, it is obvious that there is little or no realistic chance of criminal investigation and prosecution, as was the case in, for example, Belarus, Syria, Ukraine, Venezuela, and the United States.
Fear and Lack of Awareness
Investigating, prosecuting, and judicial authorities may be afraid to open an investigation into enforced disappearances because it could lead to findings that would be unfavorable to them, their colleagues, or the wider State apparatus (as in the notorious case of Tomas Zerón concerning 43 students of Ayotzinapa). Prosecutors are likely to be subject to pressure from other State organs and live in an atmosphere of fear that they will be dismissed or even attacked if they investigate issues that shed light on past or present State involvement in enforced disappearances (as in the case of Omar Gómez Trejo who had been a former special prosecutor for the Ayotzinapa case before he fled to the United States).
Exposing the violence perpetrated by non-State actors can also place willing authorities and their relatives at significant risk to their well-being or even their lives. This can be either because the authorities in charge of investigation suffer direct threats, especially in areas where the level of violence due to activities such as organized crime is extremely high, or because private actors work hand in hand with other state authorities who exert pressure on those competent to investigate or try the case.
Lack of awareness of the crime in some regions is another common factor that prevents the population from reporting the case to investigative or prosecutorial authorities, and prevents States from addressing the crime. In the contexts where enforced disappearances take place, there is often a widespread fear among the population about reporting them, with the result that cases are not even known to the competent authorities.
Jurisdiction, Amnesties, and Statute of Limitations
Jurisdictional obstacles, including the lack of grounds for extraterritorial jurisdiction, are another common barrier to accountability. In Cabello v. Fernandez Larios, for example, criminal justice was not an option in the United States due to the lack of extraterritorial criminal jurisdiction for offenses such as extrajudicial killings or torture committed abroad before 1994. Fernandez Larios, a retired former Chilean official residing in the United States, publicly acknowledged that he had been part of the Caravan of Death, one of the deadliest operations carried out while former Chilean President Augusto Pinochet was in power. But Larios could not be prosecuted for enforced disappearance, given that the offense did not exist in the U.S. legislation. At the same time, an amnesty law barred any chance for prosecution in Chile.
Similarly, the obscurity of universal jurisdiction in cases of enforced disappearance, which are often a result of the fact that the State that is pursuing trials via universal jurisdiction has no jurisdictional basis for it, hinders investigations and prosecutions. Only one case of enforced disappearance, that of Yuri Harauski, has taken place solely on the basis of conditional universal jurisdiction.
The statute of limitations is another common challenge to the criminal investigation and prosecution of enforced disappearances. This often goes hand in hand with qualification of enforced disappearance as unlawful deprivation of liberty, arbitrary detention, (aggravated) abduction, or kidnapping, or a combination thereof. This might be a consequence of the fact that domestic legislation does not criminalize enforced disappearance (see, for instance, the U.S. criminal prosecution of Michael Sang Correa, Arce Gomez et al in Italy, and Mahera Sajid in Pakistan). However, qualifying enforced disappearance as abduction, homicide, or similar, may lead to the conclusion that the crimes have at the moment of the trial already prescribed.
Lack of Understanding of Enforced Disappearance
The definition of enforced disappearance protects specific values that are not fully covered by any other criminal offense. The most distinctive value of the crime of enforced disappearance is the secrecy inherent in the criminal act, which leads to uncertainty on the part of various parties, namely, the disappeared, their relatives, and the society as a whole. Still, one of the most pressing challenges is the lack of understanding of the specific structure of the crime. In this regard, the Al-Khatib case regarding two former intelligence service officers Anwar R. and Eyad A. for crimes perpetrated in Branch 251 in Damascus, Syria, before the Higher Regional Court in Koblenz, Germany, in 2020-2022. Despite the calls of the joint plaintiffs to include enforced disappearances as an underlying offense of crimes against humanity in the indictment, the competent court rejected their request. It justified this decision by turning to the existing definition of enforced disappearance as a crime against humanity in German criminal legislation, which, at the time of the trial, included a requirement on official inquiry about the disappeared, and concluded that the element was not present in the given context. The lack of an official inquiry is inherent in the definition of enforced disappearance when the same State’s officials are the perpetrators, and inquiries into the fate or whereabouts of prisoners during the Assad regime in Syria were accompanied with high risk of repercussions.
The Future
At the World Congress earlier this month, relatives of the disappeared offered testimonies that clearly highlighted the need for criminal accountability. While there were notable achievements in recent years (see cases on Dabbagh in France and Guatemala in Belgium), next steps include interpreting enforced disappearance by keeping in mind the specific values protected by the definition. Whether prosecuted at the national or international level, justice for the crime of enforced disappearance must advance the normative values behind its criminalization and be done in a manner that keeps in mind the many forms of enforced disappearance.