IV. International Legal Standards and Norms Relating to Disappearances
An enforced disappearance occurs when government authorities arrest, detain, or abduct an individual, followed by a refusal to disclose the fate or whereabouts of the person or acknowledge the deprivation of their liberty.86 The practice of enforced disappearance violates a number of human rights, including the right to life, the prohibition on torture and cruel, inhuman, and degrading treatment, the right to liberty and security of the person, and the right to a fair and public trial. 87
In the current absence of an international treaty against the practice of enforced disappearance, the Declaration on Enforced Disappearances, adopted by the United Nations General Assembly in 1992, reflects the consensus of the international community against the crime of disappearances, and provides authoritative guidance as to the safeguards that need to be implemented to prevent it. Four key principles affirmed by the declaration are that disappearances cannot be justified under any circumstance; that disappearances are continuing offenses, exempt from statutes of limitation; that their perpetrators should not be eligible for amnesty from prosecution; and that the victims and their survivors have a right to compensation.88
A multinational treaty on enforced disappearances is coming into effect. The International Convention for the Protection of All Persons from Enforced Disappearance (Disappearances Convention) was adopted by the United Nations (UN) General Assembly on December 20, 2006, and has been open for signature since February 6, 2007. At the time of writing, 57 countries had signed the convention.89
The Disappearances Convention addresses governmental responsibility for enforcement, investigation, prevention, and accountability. The convention states that enforced disappearance is an international crime and establishes an absolute right not to be subjected to enforced disappearance. States must ensure that enforced disappearances are violations of their criminal law, and they must prosecute any person who commits, orders, attempts to commit, or otherwise participates in an enforced disappearance, or has responsibility as a superior.
The Disappearances Convention obligates authorities to promptly and impartially investigate allegations of enforced disappearances. They must also investigate if there is no formal complaint but an enforced disappearance is believed to have occurred.
The convention reinforces international legal prohibitions against secret detentions, requiring that detainees only be held in officially recognized and supervised facilities that maintain records of all detainees. Anyone detained must be allowed contact with the outside world, especially with their family and counsel, who have a right to information on the detention and whereabouts of the person. They have the right to bring proceedings before a court that can determine the lawfulness of the detention and, if unlawful, order the detainees release. The convention also obligates states to ensure that persons set free are released in a manner permitting reliable verification that they have actually been released. States are to provide training to police and military personnel involved in the custody or treatment of detainees to prevent, investigate, and resolve cases of enforced disappearance.
The Disappearances Convention also includes provisions to ensure state accountability for enforced disappearances. States are obligated to take the necessary measures to prevent and punish delaying or obstructionist tactics by government officials; the failure to record information on detainees; and the refusal to provide information as required by law on detainees. The convention broadly defines a victim of an enforced disappearance as anyone who has suffered harm as the direct result of an enforced disappearance. It requires states to take measures to learn and report on the fate of any disappeared person and provide reparations to victims, including prompt, fair, and adequate compensation, for the wrong done to them.
In addition to these requirements of states parties, the Disappearances Convention provides for an international committee of 10 independent experts to monitor and consider individual and inter-state complaints. The committee will have a humanitarian urgent procedure, the power to undertake field inquiries, and the ability to bring to the attention to the UN General Assembly situations of widespread and systematic practice of enforced disappearance.
86 According to the preamble of the Declaration on the Protection of All Persons from Enforced Disappearance (UN Declaration on Enforced Disappearances), enforced disappearances occur, in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law. Declaration on the Protection of All Persons from Enforced Disappearances, G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992).
87 International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, arts. 6(1), 7, 9, and 14(1). Thailand became a party to the ICCPR in 1997. For a detailed discussion of the human rights violations committed by disappearances, see United Nations Commission on Human Rights, Report submitted January 8, 2002, by Mr. Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance, pursuant to paragraph 11 of Commission resolution 2001/46, E/CN.4/2002/71, p. 36.
88 UN Declaration on Enforced Disappearances, arts. 7, 17, 18, and 19.
89 The Disappearances Convention will come into effect one month after 20 ratifications.