The Committee against Torture’s Position on Enforced Disappearance

Fotos of the students who went missing in Iguala, Mexico in 2014 © Helena Solà Martín[/caption]

Francisco Larez disappeared seven years ago in a Venezuelan prison where he served a sentence for robbery. While the penitentiary reiterated that Mr. Larez had escaped, inmates reported that fellow inmates had killed him after he found out about their illegal activities that had been taking place with the consent of prison officials. All the inquiries and complaints by the father of the disappeared have been unsuccessful. To this day, Francisco Larez’s family has not been able to see his body nor find out exactly what happened to him.

From Mexico to Turkey, thousands of individuals like Francisco Larez are secretly arrested, detained, abducted or otherwise deprived of their liberty by authorities, who then refuse to acknowledge they are responsible for their deprivation of liberty and fail to provide information on the whereabouts or fate of the disappeared person.

These abductions, which often imply torture and murder, are considered a crime by international criminal law as they are done or condoned by the State, with the intent of placing the victim outside of the protection of the law.

And forced disappearances still happen today. Unlike what most people think, forced disappearances are not a thing of the past; they are not the monopoly of former dictatorships of Latin America or Nazi Germany. As a mater of fact, they affect more people than ever, as new types of victims are emerging – such as migrant workers – and non-state actors – such as terrorist groups and militia – are joining pubic authorities in perpetrating such illegal acts.

That is why the United Nations in 2006 adopted the Convention for the Protection of All Persons from Enforced Disappearance, which entered into force in 2010.

To commemorate those whose fate is unknown and remind the global community that disappearances affect many regions of the world, the UN General Assembly declared 30 August as the International Day of the Victims of Enforced Disappearances.

OMCT would thus like to take stock of the Committee Against Torture’s (CAT) position to date on enforced disappearance and highlight three key trends in its decisions of the last decade.

1. CAT rules enforced disappearance constitutes in itself a form of torture

Drawing on the Francisco Larez case, the family of the victim had called on the CAT after years of inaction of the Venezuelan Government. In its 2015 decision, the CAT reasoned that Mr. Larez family had not received any information on his whereabouts and that there was no thorough, effective and impartial investigation on his disappearance. The claim by the penitentiary that Mr. Larez had escaped was unsubstantiated and seemed implausible. The CAT further recalled that States are under an obligation to prevent ill treatment and violence in prison be it by prison personnel or other inmates.

The CAT thus rightly concluded that Francisco Larez was removed from the protection of the law and that “his enforced disappearance constitutes an act of torture within the meaning of Article 1” of the Convention Against Torture. That was the first time the CAT recognized, in such clear terms, that forced disappearance constitutes in itself a form of torture.

This decision is particularly noteworthy in the absence of any international consensus on the issue. While the Human Rights Committee (HRC) and the Inter-American Court of Human Rights (IACHR) have made a similar interpretation to the CAT’s, the European Court of Human Rights’ case law has been inconsistent, at times ruling along the same lines as the IACHR and HRC, and at other times requiring the existence of ill-treatment on top of enforced disappearance in order for the latter to qualify as torture.

2. Uncovering the truth is part of the remedy for enforced disappearances

States are under an obligation to investigate alleged violations of the Convention Against Torture in all cases of enforced disappearance following a complaint or ex officio (Articles 12). In Francisco Larez’s case, the CAT stated that investigations must not only be independent, effective and prompt, they must also establish facts and circumstances, enabling the identification and punishment of those responsible. Furthermore, investigations must afford sufficient public scrutiny, including by being accessible to the victim’s family.

An integral component of the right to an effective remedy is the right to know the truth. Though this concept belongs to humanitarian law, it has increasingly found its way into the jurisprudence of human rights courts and mechanisms. The CAT has referred to the right to know the truth for the first time in 2006 in its Concluding Observations on Peru, welcoming the Constitutional Court’s recognition of the right to the truth in forced disappearance cases.

Since then, the CAT has mentioned the right to the truth in its Concluding Observations on El Salvador (2009), Colombia (2010), Bosnia Herzegovina (2010), Peru (2012), Japan (2013), United Kingdom (2013), Cyprus (2014), Holy See (2014), Guinea (2014), and Thailand (2014). In most of theses observations, as well as in its General Comment No. 3, the CAT understands the right to know the truth to follow from the right to redress and reparation enshrined in Article 14 of the Convention.

3. States bear responsibility over disappearances by non-state actors

Enforced disappearance is not only practiced by governmental authorities, but increasingly by non-state actors such as the Fajr Libya, Boko Haram, Islamic State of Iraq and the Levant (ISIL), the Taliban, or warlords in the Democratic Republic of Congo. The CAT’s Concluding Observations have taken this trend into consideration.

When reviewing the state report of Iraq in 2015, for instance, the CAT was alarmed by reports about “serious human rights violations by […] militia groups in the conduct of military operations. These include grave violations of the Convention, such as torture and ill-treatment, enforced disappearances […]”. In its concluding observation on the Philippines in 2016, the CAT was concerned about “enforced disappearances implicating […] armed militias […]”.

It is well established in international law that States have to exercise due diligence in preventing, investigating, punishing and redressing the harm caused by forced disappearances, be it inflicted by governmental authorities or non-state actors.

In its General Comment No. 2, the CAT stated that where authorities “know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-State officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private actors consistently with the Convention, the State bears responsibility”.

In other words, if disappearance is carried out by militia, terrorist groups or the like, the State under whose jurisdiction the disappearance occurred has the obligation to prevent, investigate, prosecute and punish such non-State actors.

Enforced disappearance is not only an extremely cruel and terrifying crime, it is also a complex human rights violation. The continuous uncertainty and complete lack of information paralyze family members of those who would like to seek justice. Enforced disappearance is thus rightly understood as a form of torture not only of the disappeared but also of his or her family.

As the case of Franciso Larez shows, denials and concealments are typically pervasive at all levels of the Government and even continue slowing any investigative process after a change in regime. That leaves international mechanisms such as the CAT as the only means to combat enforced disappearance.

Nicole Bürli

OMCT Human Rights Adviser