Human Rights Watch (HRW) traces the first known use of such disappearances to Adolf Hitler. His Nacht und Nebel Erlass (Night and Fog Decree) of December 7, 1941 was used to “seize persons in occupied territories ‘endangering German security’ … and to transport them secretly to Germany, where they disappeared without trace. German authorities prohibited officials from giving any information in order to achieve the desired intimidating effect.” HRW then describes the use of enforced disappearances by Guatemalan security forces in the 1960s followed by other Latin American regimes such as in Chile, Argentina, El Salvador, Honduras, Colombia and Nicaragua in the 1970s and 1980s and more recently by Iraq, Sri Lanka and Algeria.
In 1980, the United Nations Commission on Human Rights established “for a period of one year a working group consisting of five of its members, to serve as experts in their individual capacities, to examine questions relevant to enforced or involuntary disappearances of persons.”
The mandate of the Working Group on Enforced or Involuntary Disappearances has been renewed since that time. One of its primary tasks has been “to assist families in determining the fate or whereabouts of their family members who are reportedly disappeared.” The Working Group “serves as a channel of communication between family members of victims of enforced disappearance and other sources reporting cases of disappearances, and the Governments concerned” and requests that those governments carry out investigations and inform the Working Group of the results. The cases remain open until the fate or location of the person is determined.
On 18 December 1992, the General Assembly proclaimed the Declaration on the Protection of All Persons from Enforced Disappearance as a body of principles applicable to all States. The preamble identifies enforced disappearance as undermining “the deepest values of any society committed to respect for the rule of law, human rights and fundamental freedoms, and that the systematic practice of such acts is of the nature of a crime against humanity.” The preamble also states that the enforced disappearances violate multiple United Nations human rights instruments including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. However, the Declaration then states that “while the acts which comprise enforced disappearance constitute a violation of the prohibition found in the aforementioned international instruments, it is none the less important to devise an instrument which characterizes all acts of enforce disappearance of persons as very serious offences and sets forth standards designed to punish and prevent their commission.”
The Declaration describes enforced disappearances as “an offence to human dignity” and as “a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights”.
According to the Declaration, “any act of enforced disappearance constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment.
It also violates or constitutes a grave threat to the right to life. States are under an obligation to take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance, in particular to consider them a continuing offence and to establish civil liability.”
The Declaration also refers to the right to a prompt and effective judicial remedy as a means of determining the whereabouts or state of health of persons deprived of their liberty, to the protection of all persons involved in the investigation of an enforced disappearance and to the provision of redress and compensation to the victims of enforced disappearances and their families. The Declaration pays special attention to the disappearance of children, the abduction of children of parents subjected to enforced disappearance and of children born during their mother’s enforced disappearance.
Following the Declaration, the Working Group was “entrusted with monitoring the progress of States in fulfilling their obligations deriving from the Declaration and to provide to governments assistance in its implementation.”
The formation of normative principles related to enforced disappearances was helped further by “jurisprudence from international bodies, such as the United Nations Human Rights Committee, the Inter-American Court of Human Rights, the European Court of Human Rights and the Human Rights Chamber for Bosnia and Herzegovina.”
According to the OHCHR, “In 2001, the Commission on Human Rights requested an independent expert to examine the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance and to identify gaps in order to ensure full protection. In his report, the independent expert concluded that the right not to be subjected to enforced disappearance was not established in any universal treaty and that there were many gaps regarding measures of prevention and effective remedies and reparation for victims. These gaps in the international legal framework justified the drawing-up of a new treaty.”
In 2003, following the report of the independent expert, the Commission on Human Rights proceeded with the drafting of such a treaty. Over 70 States, as well as numerous NGOs, associations of families of the disappeared and experts participated in the three-year negotiation process.
The International Convention on the Protection of All Persons from Enforced Disappearance was adopted by the General Assembly of the United Nations by its resolution A/RES/61/177 of 20 December 2006 and was opened for signatures on 6 February 2007. The Convention entered into force on 23 December 2010 after 20 States had ratified or acceded to it.