The Convention defines “enforced disappearance” as “the 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.” The Convention also provides a definition of “victim” as “the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance”. As a result, family members and others can be included under the definition.
The Convention states that no one shall be subjected to enforced disappearance under any circumstance. It requires State Parties “to ensure that enforced disappearance constitutes an offence under its criminal law” and to “make the offence … punishable by appropriate penalties which take into account its extreme seriousness.”
The Convention affirms that, “widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.”
State Parties must ensure that “any individual who alleges that a person has been subjected to enforced disappearance has the right to report the facts to the competent authorities.” Those authorities are required to “examine the allegation promptly and impartially and, where necessary, undertake without delay a thorough and impartial investigation.” Protection against ill-treatment and intimidation must be provided to the complainant, witnesses, relatives of the disappeared person, their defence counsel and investigators. State Parties must also ensure that “persons suspected of having committed an offence of enforced disappearance are not in a position to influence the progress of an investigation.”
“Among the measures intended to prevent enforced disappearances, the Convention includes the express prohibition of secret detention and calls on States to guarantee minimum legal standards around the deprivation of liberty, such as the maintenance of official registers of persons deprived of liberty with a minimum of information and the authorization to communicate with their family, counsel or any other person of their choice.”
The Convention also establishes that each victim (which includes family members and others) has “the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person,” rights each State Party must ensure. In addition, each State Party must “take all appropriate measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains” and ensure “that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation.” Each State Party must also “guarantee the right to form and participate freely in organizations and associations concerned with attempting to establish the circumstances of enforced disappearances and the fate of disappeared persons, and to assist victims of enforced disappearance.”
Finally, the Convention requires each State Party to prevent and punish under its criminal law the “wrongful removal of children who are subjected to enforced disappearance, children whose father, mother or legal guardian is subjected to enforced disappearance or children born during the captivity of a mother subjected to enforced disappearance” as well as the falsification, concealment or destruction of documents attesting to the true identity of these children.