Enforced disappearance : determining state responsibility under the International Convention for the Protection of All Persons from Enforced Disappearance

Abstract

In late 2010, the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) entered into force. The present study addresses the question of determining state responsibility under the ICPPED, based on a framework that harmonises the protection afforded by this convention with the experiences of victims of enforced disappearance. The premise is that such an approach enhances the protection from this grave human rights violation. The book consists of two parts. The first part sets the parameters for the evaluative framework. This part examines the norms laid down in the ICPPED and identifies room for interpretation. The first part also examines the effects of an enforced disappearance on its victims and discerns the main causes of their suffering. The resulting five main causes of victims’ suffering are used to define ‘the experiences of victims’. Lastly, this part examines the state obligations that give effect to the protection from enforced disappearance. This framework provides the basis for the comparative case law analysis in the second part of the book. The second part primarily scrutinises the case law of the Human Rights Committee, the Inter-American Court of Human Rights and the European Court of Human Rights. It compares the case law on several crucial issues related to the definition of enforced disappearance and on the various state obligations that are relevant to the interpretation and application of the ICPPED. These state obligations entail: the duty to respect the prohibition against enforced disappearance, the duty to prevent enforced disappearances, the duty to investigate allegations of such crimes, the duty to prosecute and punish the perpetrators, the duty to provide reparations to the victims and the duty to protect persons from being subjected to disappearance by non-state actors. Subsequently, this part evaluates the case law and provides, where necessary, alternative approaches in light of the identified main causes of victims’ suffering. This study concludes with recommendations for the interpretation and application of the norms laid down in the ICPPED by its supervisory committee. Although primarily directed towards the ICPPED, the study addresses general issues concerned with the protection from enforced disappearance. Thereby, it is hoped that the book is of value to a wide range of human rights bodies and experts dealing with this human rights violation