2.1 Introduction
Armed conflicts always result not only in mass deaths confirmed during or after the conflicts but also in large numbers of people who are considered missing or disappeared. They may be soldiers counted as ‘missing in action’, civilians whose bodies are not recovered who are killed in massacres, individual executions, or civilians not targeted as such but fallen during hostilities. Very often they may be civilians and combatants still alive but forcibly displaced or arrested and denied contact with families or their own party. Many armed conflicts where this is frequently happening become almost forgotten while they are still ongoing. Developments that are not only politically and morally shocking but are of global impact, like the full-scale invasion of Ukraine in February 2022 and the ensuing war, with many enforced disappearances among other international crimes documented or alleged there, remind us of the pertinence of the topic of enforced disappearances in the context of armed conflicts.
This contribution will address and discuss the applicability of the International Convention for the Protection of All Persons from Enforced Disappearance (hereinafter – ICPPED, or the Enforced Disappearance Convention, or the Convention) in armed conflicts, what the Convention brings to prevention of enforced disappearances in such situations and how different ICPPED is from international humanitarian law (IHL) norms designed specifically for armed conflicts.
Besides laying out rules and aspects of the Convention and of IHL that are most relevant for the issue of enforced disappearances in armed conflicts, the chapter will highlight key differences between enforced disappearances and the broader notion of missing persons while trying to briefly capture their common societal impact. It will then proceed to discuss interoperability and mutual reinforcement between IHL and the Convention in armed conflicts, especially in relation to three issues, selected for their practical but sometimes neglected implications: limitations to application of customary IHL by national authorities, accountability for war-time enforced disappearances in domestic jurisdictions and addressing enforced disappearances by non-State actors.
The chapter will include and reflect experience and perspectives of the author as someone who is neither an academic nor an official directly applying the Enforced Disappearance Convention or IHL but a development practitioner involved in capacity building of national judicial and law enforcement institutions and civil society in affected countries and territories. In that vein, some of the examples referred to in the text will be coming from such experience and, in particular, because of their relevance, those related to two geographical and conflict contexts: the Western Balkans region – which has had by far the largest number of war crimes trials and investigations before national courts and a huge number of missing persons cases, including forced disappearancesFootnote 1 – and Ukraine, where currently the caseload of IHL violations and missing persons and forced disappearances is immense and growing.Footnote 2
2.2 Societal Impact of Conflict-Related Disappearances
The problem of missing persons, and victims of enforced disappearance as a part of that category (more on the differences between the two in Section 2.5), constitutes a very important element of political, legal and social transition processes during and following armed conflicts but also after widespread political violence or following repressive regimes. This problem outlives wars and generates a strong impact on societies, communities and, most directly, victims. In this context, the notion of ‘victim’ includes not only the person who was subjected to enforced disappearance but ‘any individual who has suffered harm as the direct result’ of the crime of enforced disappearance.Footnote 3 This, first of all, includes families of the people that went missing.
The lack of knowledge of and prolonged uncertainty about the fate of the missing person and the sense of a mounting anxiety experienced as an effect of the disappearance have a long-lasting, damaging and often unique psychological impact on individuals and whole families, including trauma transfers within families and communities and across generations.Footnote 4 Families of the missing, and – especially when remaining the sole breadwinners – women, in particular, also very often have to cope with ensuing economic, legal and social problems.
Resolving the fate of missing persons, including victims of enforced disappearances, recovery and identification of their remains, and providing their families, but also the public, with credible information are of essential importance, first of all, for the families’ own healing and closure. At the same time, this is also fundamental for human rights, the rule of law and democratic governance in a country, as well as for fact-based overcoming of the past and reconciliation and for social solidarity and cohesion as parts of post-conflict recovery and sustainable peace and human security.
State authorities need to enable the families of the missing to enjoy the rights and services they are entitled to, including, inter alia, access to psychosocial support and health services; economic support; fulfilment of their right to know and other rights, including access to justice; and effective and inclusive reparations.Footnote 5 Justice, including criminal accountability of those responsible for enforced disappearances, is among the main needs and expressed desires of the families of the direct victims (usually not among their first and foremost priorities but becoming more prominent over time).Footnote 6
Such impact of enforced disappearances at individual and societal level should also serve as a backdrop for analysis, including in this chapter, of the normative framework pertaining to enforced disappearances and for assessment of its effectiveness, especially with a view of accountability.
2.3 The Notion of Armed Conflict
Before turning to discussion about enforced disappearances and armed conflicts in legal terms, we should briefly define, for the purpose of this chapter, what armed conflict is.
The landmark Tadic decision by the International Criminal Tribunal for the former Yugoslavia (ICTY) defined that an armed conflict exists whenever ‘there is a resort to armed force between states’ (international armed conflict) or ‘protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’ (non-international armed conflict).Footnote 7 For international armed conflict, occurrence of de facto hostilities is sufficient, no declaration or official acknowledgement of the conflict is needed. For non-international armed conflict,Footnote 8 in order to establish a threshold for ‘protracted armed violence’, two additional criteria, not needed for international armed conflicts, must be met: one is that the conflict should reach a certain intensity,Footnote 9 and the other is that the organization of the parties to the conflict must also reach a certain level.Footnote 10 The Tadic definition of armed conflict, such as the criteria of intensity and organization, has been regularly applied in the subsequent jurisprudence of the ICTY, International Criminal Tribunal for Rwanda (ICTR), International Criminal Court (ICC) and hybrid and many national courts and are widely regarded as reflecting customary international law.Footnote 11
The situations remaining below the armed conflict thresholds are those of ‘internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature’Footnote 12 or ‘banditry, unorganized and short-lived insurrections, or terrorist activities’.Footnote 13 Such situations are not considered armed conflicts and are not subject to IHL.
The existence of an armed conflict, international or non-international, is always a factual determination, made by judicial or other bodies during or after a conflict, based on circumstances on the ground.
2.4 Enforced Disappearance and the Convention
The Enforced Disappearance Convention, which entered into force on 23 December 2010, is the first universal treaty that prohibits enforced disappearances and provides for specific obligations for States Parties with regard to prevention, search and accountability.
The Convention defines enforced disappearance as ‘arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law’ (Article 2 of the ICPPED).
The Convention obliges State parties to ensure that enforced disappearance constitutes an offence under their respective criminal legislations (Article 4), punishable by appropriate penalties (Article 7), and subject to aut dedere, aut iudicare principle (Article 9 and Article 11). The State parties have to ensure the individual right to report facts or allegations of enforced disappearances to the competent authorities and their obligation is to examine the allegations and investigate (Article 12). Some of these States’ obligations will be also addressed in Section 2.6.
Enforced disappearance is understood as a complex and often composite and cumulative violation of different fundamental rights of the disappeared person: the right to life; the right not to be subjected to torture, cruel inhuman or degrading treatment or punishment; the right to liberty and security of a person; to recognition before the law; to humane conditions of detention; and to a fair trial.Footnote 14
2.5 Differentiating between the Notions of ‘Enforced Disappearance’ and ‘Missing Persons’
For a proper understanding of enforced disappearances in armed conflict, it is important to juxtapose it with the notion of missing persons, a phenomenon that is, as mentioned, a corollary of any war, causes significant societal and legal consequences and includes victims of enforced disappearances.
There is no mandatory or single definition of missing person under international law. The broadest and most widely applied one is the definition that the International Committee of the Red Cross (ICRC) uses and recommends for national legislations, by which a missing person is one ‘whose whereabouts are unknown to his/her relatives and/or who, on the basis of reliable information, has been reported missing in accordance with national legislation in connection with an international or non-international armed conflict, or a situation of internal violence or disturbances, natural catastrophes, or any other situation that may require the intervention of a competent State authority’.Footnote 15 It covers situations of armed conflicts, which is of our interest, but also goes beyond that.
While the notions of missing persons and enforced disappearances overlap to an extent, they are often unnecessarily and sometimes wrongly conflated. Two legal and practical differences between these two categories will be outlined here.
The first main difference between missing persons and victims of enforced disappearances is that the ICPPED’s definition of enforced disappearance includes an unlawful act: an arrest, detention, abduction, or other form of deprivation of liberty followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the person. All such acts – actions followed by intentional failure to provide information – are violations of human rights and, as required by the Convention, should constitute a criminal offence. In armed conflicts, however, people may often go missing not only as a result of unlawful acts but also as a consequence of military conduct that is lawful under IHL. For example, combatants, whether members of State armed forces or non-State armed groups, can go missing in action – after being shot dead or mortally wounded in a military action between combatants. This may also happen to civilians if they take a direct part in hostilities, who then, for such time, may be legitimately targeted.Footnote 16 Civilians may also perish as a result of lawful combat operations – when incidental loss of lives of civilians occurs in a strike that is compliant with IHL requirements of distinction (an attack not directed at civilians or civilian objects as such or without distinguishing between military and civilian objectives), proportionality and precautions. In such situations, bodies of civilians and combatants may be left abandoned unintentionally, or buried in haste, or improperly disposed of or managed in an attempt of a burial, especially mass burials, which could then make their identification or discovery difficult or impossible, and such people could be reported as missing.
It may also happen that in the course of mass displacements of people during a conflict individuals become separated while fleeing, or lose communication with their families or are left behind; while many of them are usually traced and reunited, a number of such persons may remain missing.
This distinction, nonetheless, by no means renders the category of enforced disappearances dwarfed by the broader notion of missing persons or less relevant in armed conflicts. While it is a reality that during any war people can perish, go missing or be buried in mass graves as result of acts that are not per se unlawful, it is also true that people who are reported as missing and those found in mass graves are indeed often victims of forced abductions and summary executions. They are often intentionally thrown into unmarked man-made graves, or into such locations as pits, caves or dumping sites, which offer possibility of concealment of their remains. Persons that are counted as missing also often include those that have been captured or abducted and then held incommunicado in secret locations. Those whose remains are found in a mass grave are not always and necessarily victims of unlawful acts, but any mass grave found in connection with an armed conflict or mass violence should be carefully investigated with regard to the cause of the death.
The second main difference between the notions of missing persons and victims of enforced disappearances is that the ICPPED’s definition of enforced disappearance also presupposes that a State is behind the disappearance: either representatives or agents of the State, or persons or groups of persons ‘acting with the authorization, support or acquiescence of the State’ (as the State’s de facto agents).Footnote 17 Unlike victims of enforced disappearances under the terms of ICPPED, missing persons in the sense of the aforementioned broader notion under the ICRC’s definition may also include those who went missing not due to acts by or attributable to a State or de facto State agent but by acts of non-State actors. This is particularly relevant in contexts of non-international armed conflicts or violence and disturbances that are short of an armed conflict threshold, when perpetrators could be non-State armed groups. It is also relevant in situations when groups are State-controlled but their link to a State either cannot be easily legally proven, or proving such link would be intentionally avoided for political and other reasons or when one party in a conflict does not recognize the party responsible for disappearances as a State.Footnote 18
Therefore, it is important not to use the term ‘victims of enforced disappearance’ as synonymous to ‘missing persons’. While all victims of enforced disappearances or disappeared persons are also missing persons until their fate or whereabouts are established, not each and every missing person is a victim of enforced disappearance. Likewise, not every case of a person going missing in an armed conflict and not all the bodies found in a mass grave, even if such grave is improperly marked or not marked at all, should be considered or necessarily presumed as victims of war crimes, crimes against humanity or enforced disappearance as an autonomous crime. On the other hand, it is justified, fully legitimate and also mandatory under most of national laws that each body found should be not only examined for identification but also give rise to an investigation to establish the cause of the death and whether the person has fallen a victim of a war crime or any other unlawful act.
In the author’s view, polices, legislation and development support actions, including reparation measures, to address needs, rights and status of families of missing persons should not be limited only to families of those considered victims of enforced disappearance in the sense of the ICPPED. Such support would then be unjustifiably limited only to cases where the fact of someone going missing could be proven as resulting directly from unlawful acts behind which was a State, whereas families of all the missing persons, be them victims of enforced disappearance or not, as mentioned at the beginning of the chapter, share the same needs and expectations.
2.6 Enforced Disappearance, IHL and Armed Conflict
Before discussing the applicability and relevance of the ICPPED in armed conflict, we shall first briefly capture what IHL, as the primary normative source for situations of armed conflicts, offers to address enforced disappearances as well as missing persons as a broader notion.
The IHL conventions do not directly address enforced disappearance and do not even contain that term. Nonetheless, prohibition of enforced disappearance in armed conflict is a customary international law norm, according to the most reliable and authoritative source today on customary IHL – the Customary International Humanitarian Law Study by the ICRC (hereinafter: Customary IHL Study). In its Rule 98, the Customary IHL Study says that ‘enforced disappearance is prohibited’ and that ‘state practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts’.Footnote 19 This prohibition encompasses, like in the ICPPED, a duty to investigate cases of alleged enforced disappearance.Footnote 20
The prohibition of enforced disappearance in customary IHL has been regarded, as the Customary IHL Study explains, as a cumulative effect of the existence of a number of other IHL rules that the Study has also identified as having become a part of international customary law, most notably and most directly the prohibition of arbitrary deprivation of liberty (Rule 99), the prohibition of torture and other cruel or inhuman treatment (Rule 90) and the prohibition of murder (Rule 89). Some other customary rules also contributed to that formative cumulative effect, such as the rule, applicable only in international armed conflicts, concerning registration, visits and transmission of information with respect to persons deprived of their liberty (Chapter 37 of the Rules), and the rule, applicable only in non-international armed conflicts, requiring parties to a conflict to take steps to prevent disappearances, including through the registration of persons deprived of their liberty (Rule 123). As the Study also points out, the customary law prohibition of enforced disappearance should also be viewed considering the rule requiring respect for family life (Rule 105) and the rule that each party to a conflict must take all feasible measures to account for persons reported missing as a result of the armed conflict and to provide their family members with information it has on their fate (Rule 117).
The Customary IHL Study, originally published in 2005 – hence before the adoption of the ICPPED in December 2006 – came to the customary law status of the prohibition of enforced disappearance in armed conflicts by examining a number of sources indicating State practice and opinion iuris in relation to the aforementioned rules. It deduced it, inter alia, from prohibition of enforced disappearance in the legislation and military manuals of a number of countries;Footnote 21 repeated condemnations by States and the UN bodies, including the UN Security Council, of enforced disappearances; the Inter-American Convention on the Forced Disappearance of Persons; international bodies’ resolutions, as well as in the findings by human rights courts and bodies that enforced disappearance violates several other rights (Inter American Commission and Court of Human Rights, UN Human Rights Committee, European Court of Human Rights – ECtHR).Footnote 22 The universal customary prohibition was found to be based also on the inclusion of enforced disappearance as a crime against humanity in the ICC Statute and on the jurisprudence of the ICTY on enforced disappearance as a crime against humanity. Finally, the Study also found it confirmed by non-existence of official contrary practice: no State has ever claimed the freedom to enforce the disappearance of persons.Footnote 23
There are several other rights embodied in the four Geneva Conventions and Additional Protocol I, also making a part of customary international law, that are directly related to missing persons in armed conflicts and that impose certain duties and standards of care to parties to armed conflicts that can prevent enforced disappearances or help in resolving the fate of those believed to be disappeared. In the event of death, all parties must use all means they can to identify the dead, including recording all available identifying information, before a burial or disposal of the remains and marking the locations of graves.Footnote 24 The remains of the dead must be disposed of in a respectful manner and their graves properly maintained and respected.Footnote 25 In an international armed conflict, each party must endeavour to facilitate the return of the remains of the deceased.Footnote 26 All parties to an armed conflict, international or non-international, must take all feasible measures to account for persons reported missing as a result of the armed conflict and to provide family members with any information they have on the fate of their relatives.Footnote 27
All the aforementioned treaty and customary norms of IHL, as the primary regulator in armed conflicts, create a substantially fair and adequate normative safety net for the prohibition of enforced disappearance and for the search for and identification of the disappeared and the missing in situations of armed conflicts. Nonetheless, as it will be explained below, there are potentially significant roles for the ICPPED to play besides and in conjunction with IHL in relation to armed conflicts.
2.6.1 Applicability of ICPPED in Armed Conflicts
The ICPPED, clearly, applies not only in peacetime but also in and to the situations of armed conflicts. The text of the Convention itself does not exclude any category of persons from its protection by guaranteeing, in Article 1(1), that ‘no one shall be subjected to enforced disappearance’. Moreover, it explicitly says, in Article 1(1), that ‘no exceptional circumstances’, including ‘a state of war or a threat of war’ (emphasis added), may be invoked as a justification for enforced disappearance, thus making prohibition of or protection from enforced disappearance one of the non-derogable international human rights.
Besides the text of the ICPPED itself, and even if there had been no such provisions in the Convention in the first place, another more general avenue for its applicability in armed conflicts is a general principle that international human rights law can be directly applied in situations of armed conflict together, in parallel or in interplay with IHL. In the words of the ICRC, ‘in situations of armed conflict, human rights law complements and reinforces the protection afforded by international humanitarian law’.Footnote 28 This principle, gradually developing and growing in substance, and nuanced interplay between the two bodies of law, coming, inter alia, with the process of humanization of IHL through human rights law,Footnote 29 is generally widely accepted today. Espoused as a principle by the International Court of Justice in three of its casesFootnote 30 (though not without some inconsistencies), this has been a position also taken and maintained by a majority of States,Footnote 31 UN human rights treaty bodies and UN human rights special procedures,Footnote 32 by UN General Assembly and UN Security Council resolutions referring to both IHL and human rights law, by the ICRC and by overwhelming international academic opinion.Footnote 33
While the answer to whether human rights law also applies in armed conflict is simple one – yes, it does – the interplay between human rights law and IHL in armed conflict, especially in concrete situations and with regard to concrete sets of norms, is not that simple. Even leaving aside the question of extraterritorial application of human rights treaties,Footnote 34 the issue of defining and determining relations between the two bodies of law, both in terms of applicable legal regimes and concrete applicable norms in a situation, has been much debated and not (conclusively) resolved. Undoubtedly, IHL is the first to look into when it comes to norms of conduct in an armed conflict. Using the lex specialis doctrine (a law governing a specific subject matter [lex specialis] overrides a law governing more general matters), with IHL being lex specialis as long as an armed conflict is ongoing, has been long held not as unimpeachable but at least a best answer to denote this interrelation.Footnote 35 Such position was held by governments and practitionersFootnote 36 and also maintained by the ICRC.Footnote 37 Many also persuasively argue against this,Footnote 38 suggesting other alternatives – not necessarily as approaches but more as tools for interpretation or notions capturing the substance of the IHL–human rights law relation and interplay, such as ‘complementarity’, ‘cross fertilization’, ‘harmonization’, ‘parallel applicability’, ‘integration’ or systemic interpretation.Footnote 39 The nature of the relation between the two bodies of law is not only a purely theoretical one but has practical implications on certain norm conflicts and on the legal interoperability of actors on the ground.Footnote 40 Still, this debated issue does not need to be dwelled on here for one substantial reason: unlike in relation to some other topics and rights that are regulated differently by IHL and international human rights law or regulated in such ways that are arguably mutually exclusive (such as rules on targeting, or preventive detention in armed conflicts or those regulating occupation), prohibition of enforced disappearance as a matter of human rights law does not encounter any conflicting IHL norm, principle or practice. They are mutually reinforcing. There are differences in terms of scope of what the Convention addresses as enforced disappearance and what IHL regulates in relation to missing persons – as discussed above – and some other differences that are not of great significance, which will be addressed in some details below.
2.6.2 ICPPED vs. Ambiguous Advantage of Customary IHL
An important advantage of the application of the Convention in situations of armed conflict is that it is an international convention. As previously explained, the IHL treaty does not contain a prohibition of or any reference to enforced disappearance, but IHL, by way of its customary law norms, does positively prohibit enforced disappearance and imposes a duty to investigate, as articulated in Rule 98 of the Customary IHL Study. Being a part of customary international law, the prohibition of enforced disappearance exceeds the reach of the ICPPED: it binds, in the situations of armed conflict, not only those seventy-one State parties to the Convention,Footnote 41 but, like most of customary law norms, all countries (as there have been no persistent objectors to the formation of this customary norm). This is especially important in light of the fact that many of the countries that did not ratify the ICPPED were or are engaged in armed conflicts in their own territory or abroad or deal with situations in which enforced disappearances are alleged to have or may occur.Footnote 42 The authority of the Customary IHL Study as a tool of telling us what customary IHL is has been widely recognized and is increasing and solidifying over time, due to, inter alia, the ICRC’s expertise and special mandate vested to it by the States and the rigour and the extent of the collection of practice and identification of the rules for the Study but also because of lack of repeated and consistent opposition by States.Footnote 43
Still, I would submit, not only the Customary IHL Study as a source of knowledge of what customary law norms are, but even customary law itself as a source of law, have not been sufficiently recognized and understood by many, especially by practitioners, whose job is to apply IHL either during armed conflicts or in hindsight by resolving the cases of disappearances or enforcing criminal accountability. Namely, this author has twenty-year long experience with training and monitoring how officials from justice, law enforcement and institutions for searching for missing persons apply IHL and international criminal law in dealing with conflict-related atrocities and missing persons cases in national jurisdictions (mainly in the countries of the Western Balkans/former Yugoslavia, but also elsewhere, such as in South Sudan, Libya and recently in Ukraine). Based on numerous observations, first-hand reactions and feedback, the understanding of all these practitioners that customary international law is something they can and should apply was very rare.
The reasons are manifold why the vast majority of them, most of whom were lawyers by profession or training, lacked such understating and continued holding a firm professional belief or sense, even after attending international law trainings, that customary international law is either not really applicable or is a kind of exotic legal regime and, in their view, certainly secondary to treaties. Such reasons differ across various local professional and legal contexts, but some things can be observed as common. In legal education, customary international law is usually mentioned and taught about only rarely and only as part of (classes on) public international law and, partly, constitutional law, and only sketchily, without apparently being given proper explanations, especially in terms of customary law practical applicability. Another, practical reason is that practitioners, first of all judges, in national jurisdictions in most of the countries do not dispose of abilities and means (including technical) to research and identify customary law rules themselves as a product of State practice and opinion iuris. They are most often not sufficiently aware of the usability or even the mere existence of the Customary IHL Study. Importantly, most of the practitioners are operating in the criminal law field, and criminal lawyers, especially theorists and academics in national jurisdictions, mainly traditionally hold that customary law cannot be a source in criminal law at all, or that it is, at best, inapt for such a role. Their position derives from traditional requirements that offences and punishments to be brought as a law must be written (lex scripta principle) and must be defined with sufficient clarity (lex certa principle), which, as they see it, customary law does not provide. They also use as a key argument that there are no prescribed concrete sanctions in customary law. Such position persists despite the fact that the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) allow for punishment for a criminal offence to be based not only on national but also international law.Footnote 44 In many national jurisdictions, domestic regulations of international crimes is done in such way, described by scholars as ‘dynamic reference to international law by national criminal law provisions’,Footnote 45 whereby national criminal law itself refers national courts to look into international law, which by default may include customary law, when defining elements of certain crimes. Typical examples of such national systems are or were criminal codes in the countries and jurisdictions of the Western Balkans, where, in relation to war crimes, the respective criminal codes make reference to ‘international law’, which should mean also customary law.Footnote 46 The respective courts, which have dealt with hundreds of such cases so far, have almost never invoked customary international law (with the Court of Bosnia and Herzegovina being the only one in that region inclined to look beyond the conventions and into customary law but mainly through the ICTY jurisprudence). In some countries, like Ukraine, where a dynamic reference to international law also exists in the national criminal code, the currently prevailing interpretation is that it is limited only to ratified treaties, thus excluding customary law.Footnote 47
Therefore, while customary IHL legally enables the prohibition of enforced disappearance and all the related duties and rights and binds all States, not only the State parties to the ICPPED, when it comes to application and enforcement of the norm in domestic legal systems, customary law is not as recognized and appreciated as treaty law. In absence of enforced disappearance from IHL treaties, the ICPPED, hence, has an advantage over the customary law by being a legal ground, in all the ICPPED’s State parties and where application of international treaties in domestic jurisdiction is constitutionally or otherwise possible, that is much better recognized by practitioners as a legal source for application within their own domestic legal systems.
2.6.3 Enforced Disappearances in Armed Conflicts and Criminal Accountability
Another important role for the ICPPED to fill a gap in IHL in relation to armed conflicts is to serve as a basis for criminal accountability for war-time enforced disappearances. Accountability in this context is not only an obligation under the Convention but also a mechanism that is arguably key in ensuring compliance with prevention of enforced disappearance and resolving the cases of disappearances (which will also be addressed in more detail below).Footnote 48
2.6.3.1 No War Crime of Enforced Disappearance
Enforced disappearance is not among the grave breaches (war crimes) of the Geneva Conventions and Additional Protocol I. They are not included in war crimes under the Rome Statute (Article 8) either. International criminal tribunals and hybrid courts have not developed jurisprudence on prosecuting enforced disappearance as such as a war crime. While Rule 98 of the Customary IHL Study also entails a duty to investigate enforced disappearances, the Study does not include enforced disappearance among war crimes explicitly enumerated in its Rule 156 on definition of war crimes. What the Study does, though, is that it refers, at the end of its commentary to Rule 156, to enforced disappearance as an example of a composite war crime – as conduct that is criminal because it consists of a combination of several war crimes amounting in practice to depriving a person of a fair trial and often also to murder. This is indeed correct. Likewise, with the same arguments that enforced disappearance is a composite human rights violation, as previously explained, we can argue that accountability for enforced disappearances as a war crime may be reached also through the angle of the disappeared person’s family members’ prolonged suffering that can amount to torture, or inhuman or cruel treatment or outrages upon personal dignity (depending on the extent of the assessed suffering) of the relatives.
Nonetheless, we still cannot say that enforced disappearance as such is established as a war crime in international law – neither in treaty, nor, at the moment, in customary law. For this reason, and especially because the Rome Statute, which has served for the past two decades as a major single reference point for harmonization of national criminal legislation with international criminal and humanitarian law, does not count enforced disappearance as a war crime, States have not included enforced disappearance in their own domestic penalization of war crimes. (At least the author is not aware of any contrary example at the moment but allows that in some national jurisdiction such development might have already taken place.)
2.6.3.2 Limitations of Enforced Disappearance as a Crime against Humanity
Enforced disappearance does exist as an international crime and in the Rome Statute as a crime against humanity. The Rome Statute, in Article 7(2)(i), defines ‘enforced disappearance of persons’ as a crime against humanity in a manner that is largely similar to the ICCPED, with the key addition that, under the Rome Statute, ‘a political organisation’, not only a State, can be behind the crime. Enforced disappearance as a crime against humanity also appeared in the jurisprudence of the ICTY, as one of ‘other inhumane acts’ provided for in Article 5(1) of the ICTY Statute.Footnote 49
The ICPPED also refers to enforced disappearance as a crime against humanity, but it did not introduce criminal responsibility in that respect; it only acknowledged what was already in international law.Footnote 50
While crimes against humanity also often occur in armed conflicts, and there can be frequent substantive overlapping between war crimes and crimes against humanity, there is a significant difference too between these categories of crimes. Prosecuting enforced disappearance as a crime against humanity requires proving that there has been a widespread or systematic attack, carried out against any civilian population, with the perpetrator of the enforced disappearance acting with knowledge of such attack, as distinctive elements of crimes against humanity. Serious violations of IHL in armed conflict (war crimes), on the other hand, and enforced disappearances during an armed conflict can be and often are committed as single or isolated actsFootnote 51 or at least do not require proof of a widespread or systematic attack. In reality, a lot of enforced disappearances do occur in the context of or at the scale of widespread or systematic attacks, but this is not necessarily the case. In addition, during or after armed conflicts, authorities, including prosecution services and courts – especially in countries with a lack of independence thereof, may be reluctant, for political and other reasons, to go for proving or accepting evidence of widespread or systematic attacks or even to use such discourse or terminology. This may particularly be the case when the judicial, law enforcement or other institutions supposed to investigate enforced disappearance are from the country that has been behind the disappearances and the widespread or systematic attacks.
Besides the issue of distinctive elements of crimes against humanity, which may leave some instances of war-time enforced disappearances short of the crimes against humanity threshold, another obstacle may be the absence of domestic penalization, in many countries, of crimes against humanity as a separate crime or the non-retroactivity argument in the countries that at some point did introduce this offence in their criminal legislation. While there is a progressive process of inclusion of crimes against humanity as a crime under national law in many countries across the world, often through incorporation of the Rome Statute provisions as a perceived international law model, many still do not provide for domestic criminal responsibility for crimes against humanity. An example, currently very much under spotlights and with a large number of enforced disappearances, is Ukraine (despite, inter alia, its acceptance of the ICC jurisdiction since 2015). On the other hand, some countries envisaged crimes against humanity in their own criminal law, but notwithstanding this and despite facing themselves large number of potential cases of crimes against humanity, including enforced disappearances, from their own past, they do not investigate those cases as crimes against humanity because they had occurred before the amendments to the criminal code. The prime example of such position, given the load of potentially dozens if not hundreds of such cases, are the countries of the Western Balkans. They continue holding – with a notable exception of the Court of Bosnia and Herzegovina, which regularly enters convictions for crimes against humanity – that this would violate the principle of non-retroactive application of criminal law (nullum crimen sine lege). Such position in these jurisdictions prevails, based on a mixture of political considerations and legal conservativism, despite the fact that the ECtHR gave an unequivocal answer, and exactly in relation to accountability for crimes against humanity in the Western Balkans, that prosecuting for these crimes as a separate offence when committed before the criminal legislation amendments would be perfectly in line with international and domestic law and would not violate the principle of non-retroactivity.Footnote 52
2.6.3.3 ICPPED’s Enforced Disappearance as Autonomous Crime
In the absence of enforced disappearance codified as a war crime and with the aforementioned limitation of treating such conduct as a crime against humanity, the ICPPED does have a role in providing for accountability mechanisms for enforced disappearances in time of armed conflict. The Convention requires the State parties to take the necessary measures to ensure that enforced disappearance constitutes a separate offence under its criminal law (ICPPED’s Article 4), covering various modes of liability (Article 6(1)a), including superior responsibility for failure to prevent or supress crimes of enforced disappearance by subordinates (Article 6(1)b, defined very much as in Article 28(b) of the Rome Statute). ICPPED does not establish direct grounds for individual criminal responsibility but obliges States to provide for enforced disappearance as a separate or autonomous crime that must be distinctive from similar offences commonly provided for in national legislation, such as deprivation of liberty, abduction, kidnaping, torture, incommunicado detention, etc.Footnote 53 Such codification of enforced disappearance in domestic criminal laws in the way the ICPPED requires, and not only as a crime against humanity (which, as explained, is insufficient and not commensurate to the nature of the offence),Footnote 54 would provide for a mechanism legally capable for investigation and holding accountable in domestic courts for a individuals involved in enforced disappearances both during and outside armed conflicts, independently of the context of the crime and a suspect. There are many States, parties to the ICPPED and States in general that are still to make such legislative changes at home.
Enforced disappearance is a continuous crime: as long as the perpetrator continues to conceal the fate and the whereabouts of the persons who have disappeared and these facts remain unknown, the violation is considered as ongoing.Footnote 55 The search for such person is a continuing obligation for the State.Footnote 56 For this reason, it is possible to convict someone without violating the non-retroactivity principle for enforced disappearance that had occurred (or, in other words, given the continuous nature of the crime, commenced) before a legal instrument introducing enforced disappearance as an autonomous crime was enacted domestically.Footnote 57 Therefore, codification of enforced disappearance as an autonomous crime would not only serve to hold future perpetrators accountable and thus, potentially, prevent or avert future disappearances but would also enable prosecution of the responsible for the past and ongoing disappearances.
Prosecution for enforced disappearance as a separate offence may often be the only option for criminal accountability but also for finding remains of disappeared or missing persons. A criminal investigation and trial for enforced disappearance may lead to establishing the fate of the missing and/or finding the person(s)’ remains by, inter alia, generating evidence and information through the respective criminal proceeding. At the same time, even a mere possibility or likelihood that a criminal investigation is or may be open might lead to actual or potential suspects revealing information about the disappeared person’s whereabouts or remains.
Namely, while people who have been taken away may well be believed to be killed, the absence of reliable evidence of the persons’ death and the suspect(s)’ involvement in their killing, torture or abduction would preclude prosecution for war crimes of murder or other such crimes. Information or evidence may often suggest the suspect’s involvement in creation or, very often, concealment of a mass grave as provision of assistance (aiding and abetting) the main perpetrators, but in the absence of evidence that such assistance was promised or intended in advance, which is most often a standard requirement under national legislation or jurisprudence for that mode of liability, it can hardly if ever be proven. Participation in concealment of mass graves would be also considered, in most national jurisdictions, as a crime of removing the traces of criminal offence, or aiding evasion of justice, or the like; however, such crimes are subject, in most national jurisdictions, to statute of limitations, usually relatively short, which would leave prosecution, when such acts occurred many years earlier, untenable.
On the other hand, because of its continuous nature, enforced disappearance, if provided in the law as an autonomous crime as required by the ICPPED, remains a viable option for the prosecution to break the silence about the destiny of the missing persons. This opens room for strategic use of enforced disappearance investigations and charges in order to resolve the fate of missing persons. Individuals involved in disposal and concealment of the bodies (e.g., often those who dug graves or disposed of the bodies in another way) and who were low in a chain of perpetrators or command, and who may be able to evade prosecution for commission or aiding and abetting war crimes for lack of evidence of their more direct and involvement, for the reasons just explained, may be subject to prosecution for enforced disappearance. For that, evidence pointing at their awareness of a mass grave, for example, would be sufficient to constitute ‘concealment of the fate or whereabouts of the disappeared person’ as a continuous act (provided, of course, that other elements of the crime are also fulfilled). In such case, a threat or a potential of their criminal prosecution, combined, if needed, with possible offer of immunity (if their responsibility is comparatively minor) or mitigation of punishment (as also allowed for under Article 7(2)a of ICPPED) may yield results. It may lead these individuals to reveal locations of mass or other graves, thus helping provide the families of the missing, and the society as a whole, with some answers and, possibly, the remains of the disappeared. They may also reveal and accept to testify against those who were higher up and/or more directly responsible for the disappearances.
2.6.4 An ICPPED’s Limitation: Disappearances by Non-State Actors
In one important aspect, the Convention provides a more narrow substantive protection from enforced disappearance than IHL, and this is with regard to disappearances in the hands of non-State actors. Such disappearances are common and frequent, especially in non-international armed conflicts, in particular if a non-State actor has significant power as party to the conflict or when a conflict is between two or more such groups. Such situations may also include instances when it is not possible to conclusively establish that a State had or has control over a non-State armed group.
The ICPPED requests the State parties to take appropriate measures to investigate and prosecute enforced disappearances when committed also by persons or groups of persons acting without the authorization of a State (Article 3). In this way, the Convention, as with the responsibility for enforced disappearance in general, imposes a certain duty on States and does not directly serve as the basis for the attribution of criminal responsibility to individuals that are not acting as de iure or de facto State agents. Moreover, the Convention nonetheless leaves the definition of enforced disappearance from Article 2 as it is – as a State agent perpetrated crime. This was in result a reflection of the ICPPED drafters’ intention, inter alia, not to dilute the responsibility of the State as primary and of the traditional understanding that human rights violations can be committed only by States.Footnote 58
The expansion to include non-State actors in a definition of enforced disappearance in international law came with the ICC’s (Rome) Statute, which provides that the crime can be perpetrated by ‘persons acting with the authorization, support or acquiescence of a State or a political organization’ (Article 7(2)i) of the Rome Statute). However, this is only applicable when enforced disappearance can qualify as a crime against humanity and only in cases tried by the ICC (unless States have chosen to reflect such extension of the notion of enforced disappearance in their own national legislation).
The Committee on Enforced Disappearances adopted, in May 2023, a statement on non-State actors, emphasizing that the Convention is a living instrument and should be interpreted in the light of present-day conditions and the evolution of international law. It stated that acts fulfilling the international law definition of crimes against humanity are also enforced disappearance and, moreover, that enforced disappearance acts committed by non-State actors fall under article 3 of the Convention either when perpetrated in the context of a non-international armed conflict or when perpetrated by a non-State actor exercising effective control and/or government-like functions over a territory.Footnote 59
On the other side, without a need for any additional interpretation or progressive development of international law, it is clear that IHL norms bind not only States but also non-State armed groups. While there are different views on the exact legal basis or legal mechanism by which non-State entities are obliged to follow IHL rules,Footnote 60 it is not disputed that they are bound by them, including the rules of customary IHL such as the prohibition of enforced disappearance.
There are many arguments to push for expansion of definition of enforced disappearance in international law in general to include non-State actors, mainly based on better protection and rights of the victims.Footnote 61 International human rights law is moving in that direction, primarily through the practice of international human rights bodies and courts and most notably and recently through the aforementioned statement by the Committee on Enforced disappearances on non-State actors, while any hopes to address it at treaty level are unrealistically ambitious in a near future. Still, so far, until this becomes firmly established, and except for the context of crimes against humanity under the ICC jurisdiction, IHL provisions concerning missing and disappeared persons and its customary law prohibition of enforced disappearance remain the key normative protection against enforced disappearances by non-State groups in armed conflicts.
2.7 Concluding Observations
Enforced disappearances do not occur only in situations of armed conflicts, but they are most frequent and massive in such situations. Together with other causes of disappearances they leave, in most of the conflicts, huge numbers of missing persons. Resolving their destiny presents long, strong and enduring challenges and leaves a heavy psychological, health, economic and other impact on their families, as well as on the entire affected societies. Addressing the rights of the families of missing persons, including providing access to justice and enabling accountability, is a fundamental issue of upholding individual human rights but also the rule of law, social cohesion and post-conflict recovery in a society. Hence, a normative framework pertaining to enforced disappearances should be analyzed and its effectiveness assessed from the perspective of its potentially preventative effect as well as through the prism of addressing the aforementioned individual and societal impact of the disappearances, especially with a view toward accountability (which, in turn, can also have a preventive effect).
The ICPPED applies in times of peace and armed conflicts alike, as does its universal and treaty-based definition of enforced disappearances, which presupposes, first, unlawfulness of how the disappearance occurred and, second, direct or indirect involvement of the State. Due to the definition, not all persons going missing during an armed conflict are victims of enforced disappearances: some may be missing as a result of military or other actions that are lawful when judged by IHL rules, and/or they may be disappeared by non-State actors. Victims of enforced disappearance are a more narrow group within the broader category of missing persons. An implication of the difference may be politically or otherwise relevant, including, importantly, cautiousness not to exclude large number of families of missing persons, whose relatives may not be proven as victims of enforced disappearances, from access to aid, services and reparations.
Both treaty and customary IHL provides for a number of protections and duties on parties to armed conflicts that are preventive in relation to missing persons and enforced disappearances and enable active search and identification. Customary IHL prohibits enforced disappearance for State as well as non-State actors, unlike the ICPPED. Even with such a substantial IHL-based normative framework, the Convention nonetheless has its role and even some comparative advantages in armed conflict. While IHL prohibition of enforced disappearance as customary is, in theory, wider than the ICCPED’s prohibition that binds only the seventy-plus State parties, applicability does not necessarily mean that something will be actually used in practice. When it comes to the application and enforcement of the respective customary IHL provisions, especially in criminal cases, national authorities often find customary law norms, in concreto or generally, elusive at best or do not recognize customary law at all, thus leaving ICPPED as a more direct and recognizable source.
When it comes to criminal accountability, there is an absence of enforced disappearance from the catalogue of war crimes. There are limitations of adjudicating enforced disappearance as a crime against humanity: they can be contextual (because of the ‘widespread or systematic’ requirement) and lack codification as crimes against humanity in national criminal legislations but also, as discussed, due to the prevailing (but erroneous) interpretations, in many national jurisdictions, relatively recent domestic codifications of crimes against humanity are not applicable to earlier crimes due to the non-retroactivity principle. This all makes the ICPPED’s requirement for enforced disappearance as an autonomous and continuous domestic crime a possible way out, provided that the number of States adequately amending their criminal legislation grows more progressively. That would not only give a ground for accountability for enforced disappearance, potentially long-stretching timewise, but may also create inducement, through investigation, immunity and mitigation tactics, for those involved but not primarily responsible for the disappearances to break the silence and help resolve the cases.
The interplay and the mutual reinforcement between the ICPPED and IHL, together with the role and authority of the Customary IHL Study, may, hopefully, lead to more universal ratification and full implementation of the Convention. In addition, which this author finds desirable, it may lead to transformation of the human rights norm and definition of enforced disappearance to expand to cover equally State and non-State actors, in armed conflict and peace time alike, and to such norm obtaining customary law status.
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