Op-ed: Citroni on Enforced Disappearance

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Photo courtesy of INACIPE and Antonio Cassese Initative.

Op-ed: Enforced Disappearance as a human rights violation and an international crime

by Professor Gabriella Citroni

MEXICO, INVESTIGATION AND FACT-FINDING TOOLKIT

Enforced disappearance is a serious human rights violation: it is considered to be a continuous offence, which incorporates a number of other rights violations, under national, regional and international human rights laws. In certain contexts, it can also be classified as a crime against humanity, punishable before the International Criminal Court. In light of the historic and more contemporaneous patterns of enforced disappearances in Mexico, it is essential to understand the legal dimension of such violations in order to be able to address them. Here, Professor Gabriella Citroni, an international expert of enforced disappearances, introduces the definitions of enforced disappearances under different international and regional treaties.

The three main instruments of international human rights law that define enforced disappearance of persons are the Declaration on the Protection of All Persons from Enforced Disappearance (1992); the Inter-American Convention on Forced Disappearance of Persons (1994, ratified by Mexico on 9 April 2002); and the International Convention for the Protection of All Persons from Enforced Disappearance (2007, ratified by Mexico on 18 March 2008 and in force since 23 December 2010). These instruments provide a similar definition of enforced disappearance, formed by three constituent elements: 1) the deprivation of liberty of the victim; 2) the perpetrators are State agents, or persons or groups of persons acting with the authorisation, support or acquiescence of the State; and 3) a refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person. The result of an enforced disappearance is that the victim is placed outside the protection of the law.

Additionally, the three above mentioned legal instruments hold that, when practiced on a widespread or systematic basis, enforced disappearance of persons may amount to a crime against humanity.

In its General Comment on the definition of enforced disappearance, the UN Working Group on Enforced or Involuntary Disappearances (WGEID) clarified that the WGEID admits cases of enforced disappearance without requiring that the information provided by the source reporting a case demonstrates or presumes the intention of the perpetrator to remove the victim from the protection of the law. The UN Committee on Enforced Disappearances, the Inter-American Commission and Court of Human Rights follow the same approach when establishing State responsibility for an enforced disappearance, with the aim of interpreting the definition of the crime in the most appropriate way to protect all persons against this practice.

These bodies also apply a reversal of the burden of proof in favour of the petitioners. In other words, the State has to prove that the alleged violations did not take place; the petitioners do not have to show that the State carried out the disappearance or demonstrate what happened to the missing person.

Meanwhile, the Rome Statute establishing the International Criminal Court (1998, ratified by Mexico on 28 October 2005) includes enforced disappearance as a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, and thus defines the crime as “the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time”. The ICC has jurisdiction only over crimes committed after the entry into force of the Statute for the State concerned.

It can be seen that the definition in the Rome Statute differs from those in the instruments of international human rights law to the extent that the definition of enforced disappearance of the Rome Statute includes: a) political groups as potential perpetrators of the crime, even when not acting on behalf or with the direct or indirect support, consent or acquiescence of the Government; and b) the intention of removing the victim from the protection of the law for a prolonged period of time, as an element of the crime.

However, note that the instruments of international human rights law are primarily aimed at establishing State responsibility, while the Rome Statute refers to individual responsibility for committing a crime. This justifies some of the differences in definitions noted above, especially with regard to the need to verify the intent of the perpetrator. In international criminal law, for the offender to be found guilty, it must be proved, inter alia, that the latter had the intention of removing the victim from the protection of the law for a prolonged period of time and that he was aware that his/her conduct was part of a widespread or systematic attack directed against a civilian population or had intended that his/her conduct was part of an attack of this kind. Clearly, the definition provided by the Rome Statute requires a much heavier burden of proof and contains wording that affords a wide margin of discretion (e.g. the “prolonged period of time” for which the offender must want to leave the victim outside the protection of the law).

Regardless, both the definitions from human rights and international criminal law pursue the same values: protecting the liberty, life and integrity of the person, as well as the fight against impunity for such crimes.

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Professor Gabriella Citroni, Professor of International Human Rights Law at the University of Milano-Bicocca, Italy; International Legal Advisor to the Federación Latinoamericana de Asociaciones de Familiares de Detenidos Desaparecidos (FEDEFAM) and to the Swiss NGO TRIAL (Track Impunity Always); member of the Italian delegation during the negotiations on the International Convention on the Protection of All Persons from Enforced Disappearance.

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Further reading: Gabriella Citroni, ‘Time to see the end‘, OUPblog, Oxford University Press, August 30th 2014.

Disclaimer: The views and opinions expressed are those of the author and do not imply endorsement by the Case Matrix Network. 
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