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SLDP Capacity Building Course 2018 – International Law Questions

Human Rights Guardians

  1. Can non-state actors commit enforced disappearance as an international crime or as a violation of international humanitarian law, or is the restriction limited only to the state agents or organs of the signatory nation?

With regards to international humanitarian law enforced disappearance is not a defined concept in of itself, but the act of enforced disappearance crosses on a number of IHL prohibitions which renders it prohibited in actuality, and as a result the ICRC has recognised the prohibition of “enforced disappearance” as a defined concept to be a rule of customary international humanitarian law[1](binding on non-state actors), with the physical process of the act to also contravene three other international customary IHL rules and their argued treaty bases that extend this prohibition onto Common Article 3 and Additional Protocol II of the Geneva Conventions. These are the customary prohibitions against arbitrary deprivation of liberty[2], and the customary prohibitions against violence to life[3] and torture, cruel, inhuman or degrading treatment[4] with treaty application on non-state actors through Common Article 3[1](a) and (c) whereby non combatants must be treated humanely by all parties absent cruel treatment, violence to life and person, and outrages upon personal dignity[5], and the reflected provisions in Articles 4[1] and [2](a)(e) and 5 of Additional Protocol II[6], of which Article 5 guarantees fundamental treatment requirements for individuals deprived of their liberty for which enforced disappearance does not allow.

Whilst the concept of “enforced disappearance” as a crime is mentioned in the Rome Statute, it only applies in the context of a generalized crime against humanity where enforced disappearance is systematically and widely used as part of an attack on a civilian population (Article 7[1](i) and [2](i)) as opposed to individual instances as war crimes – it is not limited to state agents whereby it may be enacted by any “political organisation”.

With regards to the meaning and attribution of “enforced disappearance” by reference to the International Convention for the Protection of All Persons from Enforced Disappearance[7], the prohibition is only directly applicable to state parties and their agents through Article 2 – the convention only covers non-state actors through Article 3 whereby acts described as “enforced disappearance” being enacted by “persons or groups of persons acting without the authorization, support or acquiescence of the State” are referred to investigation and justice through “appropriate measures” by the member states themselves as opposed to the enforcement mechanisms of the convention.

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[1] ICRC Customary IHL Database; Rule 98

(https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule98)

[2] Supra note 5 at Rule 99

[3] Supra note 5 at Rule 89

[4] Supra note 5 at Rule 90

[5] Common Article 3 of the Geneva Conventions

(https://ihl-databases.icrc.org/ihl/WebART/375-590006)

[6] Protocol Additional to the Geneva Conventions (II) [1977]

(https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=AA0C5BCBAB5C4A85C12563CD002D6D09&action=openDocument)

[7] International Convention for the Protection of All Persons from Enforced Disappearance (2007]

(https://www.ohchr.org/en/hrbodies/ced/pages/conventionced.aspx)

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