Enforced Disappereances with Special Reference to Arbitrary Criminal Detention

  • SumoMe

A forced disappearance occurs when an organization forces a person to vanish from public view, either by murder or by simple sequestration. The victim is first kidnapped, then illegally detained in concentration camps, often tortured, and finally executed and the corpse hidden.

According to the Rome Statute of the International Criminal Court, which entered into force on July 1, 2002, when committed as part of a widespread or systematic attack directed against any civilian population, “forced disappearances” qualify as a crime against humanity, which thus cannot be subject to statute of limitation.

Typically, a murder will be surreptitious, with the body disposed of in such a way as to never be found. The person apparently vanishes. The party committing the murder has deniability, as there is no body to show that the victim is actually dead. Furthermore, the perpetrators of disappearance often go to great lengths to obscure or eliminate all mention of the disappeared, by altering the historical record and encouraging the silence of surviving relatives.

Rights violated by the practice of disappearance

The practice of enforced disappearance of persons infringes upon an entire range of human rights embodied in the Universal Declaration of Human Rights and set out in both International Covenants on Human Rights as well as in other major international human rights instruments.

Disappearances can also involve serious violations of the Standard Minimum Rules for the Treatment of Prisoners, approved by the United Nations Economic and Social Council in 1957, as well as in the Code of Conduct for Law Enforcement Officials and the Body of Principals for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the General Assembly in 1979 and 1988 respectively. The following individual rights may also be infringed upon in the course of a disappearance:

The right to recognition as a person before the law;

The right to liberty and the security of the person;

The right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment;

The right to life;

Disappearances generally violate the right to a family life as well as various economic, social and cultural rights such as the right to an adequate standard of living and the right to education. In fact, it has been found that the disappearance of the family’s main economic support, particularly in less affluent societies, frequently leaves the family in a desperate socio- economic situation in which the majority of the rights enumerated in the International Covenant on Economic, Social and Cultural Rights cannot be realized.

The serious economic hardships which usually accompany a disappearance are most often borne by women. When women are the victims of disappearance they become particularly vulnerable to sexual and other forms of violence. In addition, it is women who are most often at the forefront of the struggle to resolve the disappearances of members of their family. In this capacity they may suffer intimidation, persecution and reprisals.

Children are also involved in disappearances, both directly and indirectly. The disappearance of a child is a clear contravention of a number of provisions of the Convention on the Rights of the Child, including the right to a personal identity. The loss of a parent through disappearance is also a serious violation of a child’s human rights.

Arbitrary arrest and detention, or (AAD), is the arrest and detention of an individual in a case in which there is no likelihood or evidence that he or she committed a crime against legal statute, or in which there has been no proper due process of law.

Arbitrarily depriving an individual of their liberty is strictly prohibited by the United Nations’ division for human rights. Article 55 of the 2002 Rome Statute of the International Criminal Court declares such a practice by government a major crime. Article 9 of the 1948 Universal Declaration of Human Rights decrees that “no one shall be subjected to arbitrary arrest, detention or exile”; that is, no individual, regardless of circumstances, is to be deprived of their liberty or exiled from their country without having first committed an actual criminal offense against a legal statute, and the government cannot deprive an individual of their liberty without proper due process of law.

In this agenda, the council shall aim towards finding a solution to the twin problems of enforced disappearances and arbitrary criminal detention with a special reference to the cases where the two violations of the Universal Declaration of Human Rights have occurred together.

The council must ensure that the resolution formed addresses any sort of security loopholes as well as ensures that countries with past, proven records of such misdemeanors are made accountable. In addition, delegates must ensure that those countries accused of enforced disappearances and activities falling in the realm of arbitrary criminal detention are made answerable to the Human Rights Council.

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