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Enforced disappearance: time to open up the exclusive club?

By Irena Giorgou


For over five decades, enforced disappearance has been the symbol of state terror and the absence of justice. Pursuant to this heinous practice, people are arrested or kidnapped, detained in secret, and subsequently ‘disappear’. All traces of the victims are deliberately wiped out: no record, no information, no body. Relatives, and the society as a whole, bear the psychological and material consequences of uncertainty over their fate, with the perpetrators enjoying eternal impunity.

Enforced disappearance is much more than a ‘common’ kidnapping, and the difference goes way beyond the absence of ransom. What principally distinguishes it from similar crimes is the fact that the state is involved in its planning and execution. As a typical ‘crime of state’, enforced disappearance can only be committed by state officials, or with their authorization, support, or acquiescence.

State involvement is reflected as a contextual element in the traditional definition of enforced disappearance. However, recent trends in practice are increasingly calling the ‘crime of state’ label into question.

While the classic model of a state apparatus operated by authoritarian regimes in order to commit disappearances of political opponents is still in function in many parts of the world, actors not linked to the state are increasingly applying the same pattern for their own political, military, or merely criminal, purposes. From the drug cartels of Colombia and Mexico to the array of armed groups in the DRC and the plantations of Honduras, acts very similar to enforced disappearance are being perpetrated, albeit detached from the state, with the latter often either unable or unwilling to prevent them or deliver justice.

Law must reflect the reality if it is to fulfil its role. The emergence of new patterns brought to light the existence of a legal gap, and sparked the debate on whether time has come for the definition of enforced disappearance to be opened up to private individuals. Since the complexity of the crime practically rules out the possibility of an isolated perpetrator, the above question refers basically to non-state armed groups, and is termed as follows: should ‘disappearances’ committed without the involvement of the state be considered as enforced disappearance, and why?

Aware of the recent developments in practice, the drafters of the ICC Statute attempted to broaden the definition of enforced disappearance, so as to cover at least some of the emerging patterns. As a result, the Rome Statute provides that enforced disappearance may constitute a crime against humanity when committed by or with the authorization, support or acquiescence of a state or a political organization.

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While the initiative to bring the law closer to the new realities on the ground ought in principle to be praised, the complexity of the phenomenon requires more than a simplistic answer. Enforced disappearance is intrinsically related to the state in terms of objectives, consequences, and constitutive elements, and diluting this link would require a complete reformulation of the definition. The codification of enforced disappearance as a distinct crime serves to emphasize state rather than individual responsibility. At the same time, similar acts can in most cases be effectively addressed under the existing legal framework. A ‘privatization’ of enforced disappearance would remove the stigma from the states onto non-state actors, while achieving a limited added value.

In this context, the new actor of ‘political organization’ in the Rome Statute is a compromise solution, which moves enforced disappearance away from the state, albeit without privatizing it. While different to the state, a political organization is nevertheless by definition not a private entity. However, and precisely for this reason, the new element seems at odds with the contextual element of a state or organizational policy, which is a requirement of every crime against humanity.

The ICC Pre-Trial Chamber, when dealing with the situation in Kenya, interpreted the element of ‘organizational policy’ as referring to both state-like and private organizations, and thus accepted that crimes against humanity may be committed on the basis of the policy of a purely criminal group. While this interpretation would undoubtedly cover most of the cases left out by the traditional definition of enforced disappearance, the much stricter ‘political’ qualifier would undo this effect. In practical terms: a drug cartel is not a political organization, and ‘disappearances’ perpetrated by such groups cannot constitute enforced disappearance unless committed with the involvement of a political organization. Only a small part of the new patterns is thus captured.

The Kenya interpretation of ‘organizational policy’ deprives the ‘political organization’ element of any sense. This paradox shows that, in order to achieve consistency between the chapeau and the definition of enforced disappearance, the element of ‘organizational policy’ should be taken to refer to state-like organizations only.

This limited ‘de-statalization’ of enforced disappearance, while logically consistent, is a poor solution to the existing legal gap. Rather, the answer should be searched in the notion of acquiescence. Unwillingness of the state to prevent or repress ‘disappearances’ committed by groups not linked to it will usually amount to acquiescence, and the acts in question will thus qualify as enforced disappearance. Nevertheless, when the state is unable to deal with them due to lack of authority or control, the legal gap remains.

Stretching the definition of enforced disappearance away from the state is not the most effective answer to the new developments in practice. And even if warranted, it would take much more than the acceptance of ‘political organizations’ to open up what has been a traditionally exclusive club to the public.

Irena Giorgou is a PhD candidate at the University of Geneva and a research assistant in the unit for relations with arms carriers of the International Committee of the Red Cross. She is a member of the Athens Bar, and specializes in international criminal law and disarmament affairs. She is the author of “State Involvement in the Perpetration of Enforced Disappearance and the Rome Statute” (available to read for free for a limited time) in the Journal of International Criminal Justice.

The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions.

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Image credit: Buenos Aires, Argentina, December 8th, 2011: Each Thursday Mothers of the Plaza de Mayo meet in front of the Casa Rosada for their lost children, who were abducted by agents of the Argentine government during the years known as the Dirty War from 1976 to 1983. The Mothers used to wear white head scarves, to symbolize the blankets of their lost children. © Lya_Cattel via iStockphoto.

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