Unseen and Unheard: Tackling the Global Crisis of Enforced Disappearances under the International Convention

Introduction

Enforced disappearances represent one of the most egregious violations of human rights, leaving victims unseen and unheard, and their families in perpetual anguish. This global crisis, often used as a tool of political repression, necessitates urgent international cooperation and robust legal frameworks to prevent such acts, ensure accountability, and provide redress to victims. The International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), adopted by the United Nations General Assembly on December 20, 2006, and entered into force on December 23, 2010, stands as a pivotal instrument in addressing this issue. This article explores the global crisis of enforced disappearances, the role of the ICPPED in combating it, and the legal mechanisms through which states can engage with this treaty. Specifically, it examines how states enter into such treaties, the relevance of monist and dualist approaches to treaty incorporation into national law, and the relationship between the ICPPED and the Vienna Convention on the Law of Treaties (VCLT) of 1969. By delving into these aspects, this article aims to provide a comprehensive analysis of how the ICPPED can be leveraged to address enforced disappearances worldwide.

The Global Crisis of Enforced Disappearances

Enforced disappearances are defined under international law as the arrest, detention, or abduction of persons by, or with the authorization, support, or acquiescence of, a state or political organization, followed by a refusal to acknowledge the deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law. This practice constitutes a crime against humanity under the Rome Statute of the International Criminal Court when committed as part of a widespread or systematic attack against a civilian population.

The global scale of enforced disappearances is staggering, with historical cases spanning continents—from the “Dirty War” in Argentina during the 1970s and 1980s, where thousands of individuals were disappeared by the military junta, to more recent instances in conflict zones such as Syria and Sri Lanka. The psychological and social impact on victims’ families, often referred to as “ambiguous loss,” compounds the tragedy, as loved ones are left without closure or justice. The international community has recognized the need for a unified response to this crisis, culminating in the adoption of the ICPPED as a legally binding instrument aimed at preventing enforced disappearances, protecting victims, and ensuring accountability.

The International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED)

The ICPPED is a landmark treaty in international human rights law, representing the first universal, legally binding instrument specifically addressing enforced disappearances. As noted by the United Nations Office of the High Commissioner for Human Rights, the Convention acknowledges the non-derogable right not to be subjected to enforced disappearance, even in times of emergency (OHCHR, 2006). Key provisions of the ICPPED include the obligation of states to criminalize enforced disappearances in their domestic legislation (Article 4), to investigate such acts (Article 12), and to ensure that victims and their families have access to justice, truth, and reparation (Article 24).

Article 1 of the ICPPED explicitly states that “no one shall be subjected to enforced disappearance,” establishing a clear prohibition. Furthermore, Article 2 defines enforced disappearance, providing a legal framework for identifying and prosecuting such acts. Article 5 classifies enforced disappearance as a crime against humanity when committed under certain conditions, aligning with international criminal law standards. These provisions create a robust framework for states to address the issue, but their effectiveness depends on how states engage with and implement the treaty at the national level.

Regarding the legal capacity of states to enter into treaties such as the ICPPED, international law generally recognizes that sovereign states have the inherent right to conclude treaties as part of their sovereignty. Under the Vienna Convention on the Law of Treaties (VCLT) of 1969, which codifies customary international law on treaties, Article 6 affirms that “every State possesses capacity to conclude treaties.” However, the specific process by which a state enters into treaties like the ICPPED is often governed by its national constitution or domestic legal framework. For the purposes of this analysis, we will consider a hypothetical state to illustrate these processes. Many states outline the procedure for treaty-making in their constitutions, often requiring executive action (such as signature by the head of state or government) followed by legislative approval or ratification. For instance, a state’s constitution might mandate that international treaties be approved by a parliamentary majority before they are binding, ensuring democratic oversight. This reflects the state’s commitment to aligning international obligations with national priorities and legal principles.

Monist vs. Dualist Approaches to Treaty Incorporation

The incorporation of international treaties like the ICPPED into national law varies depending on whether a state follows a monist or dualist approach to international law. These two approaches represent fundamentally different ways of understanding the relationship between international and domestic legal systems, influencing how treaty obligations are translated into enforceable national law.

In a monist system, international law and domestic law are considered part of a single legal order. Upon ratification of a treaty, its provisions automatically become part of domestic law without the need for separate implementing legislation. This approach is common in many civil law countries, where treaties may even take precedence over conflicting national legislation. For instance, in a monist state that has ratified the ICPPED, the provisions of the Convention—such as the obligation under Article 4 to criminalize enforced disappearances—would immediately apply domestically, and courts could directly invoke these provisions in legal proceedings.

Conversely, in a dualist system, international law and domestic law are treated as separate legal orders. Treaties do not automatically become part of domestic law upon ratification; instead, they require specific implementing legislation to be enacted by the national legislature. This approach is often seen in common law countries, where the separation between international commitments and domestic enforceability is emphasized to protect national sovereignty. In a dualist state, therefore, the government would need to pass legislation incorporating the provisions of the ICPPED into national law before they could be enforced by domestic courts. For example, a dualist state might need to amend its criminal code to explicitly define and prohibit enforced disappearances in accordance with Article 2 of the ICPPED.

Using the hypothetical state as a case study, let us assume it operates under a dualist system. In this context, while the state might ratify the ICPPED through executive action and parliamentary approval as per its constitutional requirements, the treaty’s provisions would not be directly enforceable in domestic courts until specific legislation is enacted. This could involve drafting a new law or amending existing statutes to align with the Convention’s requirements, such as criminalizing enforced disappearances and establishing mechanisms for investigation and reparation. The dualist approach, while potentially slowing down the implementation process due to the need for legislative action, allows for greater scrutiny and adaptation of international obligations to fit the national legal and cultural context. However, it also risks delaying or weakening the enforcement of critical human rights protections if political will or legislative capacity is lacking.

The ICPPED and the Vienna Convention on the Law of Treaties (VCLT) 1969

The Vienna Convention on the Law of Treaties (VCLT) of 1969 is a cornerstone of international law, providing the framework for the conclusion, interpretation, and application of treaties. It codifies customary international law principles governing how states enter into, perform, and terminate treaty obligations. A key question in the context of the ICPPED is whether it falls under the scope of the VCLT and how this relationship informs other states on properly entering into treaties with the Convention.

The VCLT applies to treaties concluded between states after its entry into force on January 27, 1980, as well as to treaties that reflect customary international law even for non-party states (Article 4 VCLT). The ICPPED, adopted in 2006 and entered into force in 2010, clearly falls within the temporal scope of the VCLT for states that are parties to both instruments. Even for states not party to the VCLT, many of its provisions—such as those on treaty formation (Articles 11-15), interpretation (Articles 31-33), and reservations (Articles 19-23)—are considered customary international law and thus applicable to the ICPPED.

Importantly, the VCLT does not “govern” the ICPPED in the sense of being a superior treaty; rather, it provides the procedural and legal framework within which the ICPPED operates as a substantive human rights treaty. For instance, under Article 11 of the VCLT, states can express their consent to be bound by the ICPPED through signature, ratification, acceptance, approval, or accession, processes which are reflected in the ICPPED’s own provisions under Article 39. This procedural alignment ensures that states engaging with the ICPPED adhere to internationally accepted standards for treaty-making, fostering legitimacy and consistency in their commitments.

For states considering entering into the ICPPED, the VCLT offers critical guidance on ensuring that their treaty actions are legally valid and binding. For example, a state must ensure that its representatives have the authority to negotiate and sign the treaty (Article 7 VCLT), that any reservations made are permissible under the treaty’s terms (Article 19 VCLT), and that domestic constitutional processes for ratification are followed to avoid later claims of invalidity (Article 46 VCLT). These principles help other countries properly enter into treaties like the ICPPED by providing a clear procedural roadmap, minimizing disputes over the validity of their commitments, and ensuring that their obligations are undertaken in good faith as per the principle of pacta sunt servanda (Article 26 VCLT).

Moreover, the VCLT’s interpretive rules can assist states in understanding and applying the ICPPED’s provisions. For instance, under Article 31 of the VCLT, treaties must be interpreted in good faith in accordance with the ordinary meaning of their terms, in light of their object and purpose. For the ICPPED, whose purpose includes the prevention of enforced disappearances and the protection of victims, this interpretive approach underscores the need for states to adopt robust implementing measures and prioritize human rights over conflicting national interests. This relationship between the VCLT and the ICPPED thus serves as a model for how states can engage with human rights treaties more broadly, ensuring that their commitments are both legally sound and substantively effective.

Challenges in Implementing the ICPPED

Despite the comprehensive framework provided by the ICPPED, significant challenges remain in its implementation at the national level. One primary obstacle is the lack of political will in some states to confront past or ongoing practices of enforced disappearances, particularly where such acts are linked to state security forces or political elites. Ratification of the ICPPED may be symbolic in such contexts, with little follow-through in terms of legislative or practical measures to criminalize and investigate disappearances.

Another challenge is the capacity constraint faced by many states, particularly in post-conflict or developing contexts, where judicial and law enforcement systems may lack the resources or expertise to implement the ICPPED’s requirements effectively. For example, under Article 12 of the ICPPED, states are obligated to ensure that any individual alleging an enforced disappearance can report the incident to competent authorities, who must then conduct a prompt and impartial investigation. However, in states with weak institutional frameworks, such investigations may be superficial or nonexistent, undermining the Convention’s objectives.

Additionally, in dualist states, the delay or failure to enact implementing legislation can render the ICPPED ineffective domestically. Even in monist states, where treaties are automatically part of domestic law, conflicts between international obligations and national laws or practices can lead to inconsistent application. Addressing these challenges requires not only legal reforms but also sustained international cooperation, technical assistance, and monitoring by bodies such as the Committee on Enforced Disappearances, established under Article 26 of the ICPPED to oversee compliance.

Case Studies and Best Practices

To illustrate the diverse approaches to ICPPED implementation, it is useful to consider comparative examples of state practice. In a monist state like Argentina, which has a history of enforced disappearances during the military dictatorship, ratification of the ICPPED in 2007 led to its direct incorporation into domestic law. Argentine courts have since invoked the Convention in prosecuting cases of disappearances, demonstrating how a monist approach can facilitate the immediate application of international norms. Moreover, Argentina has established specialized mechanisms, such as the National Bank of Genetic Data, to identify disappeared individuals, aligning with the ICPPED’s emphasis on truth and reparation under Article 24.

In contrast, a dualist state like the United Kingdom, which has not yet ratified the ICPPED as of the latest data, illustrates the complexities of treaty incorporation in such systems. Should the UK ratify the Convention, it would likely require specific legislation to transpose its provisions into domestic law, potentially involving amendments to existing human rights or criminal statutes. This process, while thorough, could delay the Convention’s impact unless expedited by political commitment.

Best practices from these and other states suggest that successful implementation of the ICPPED requires a multi-faceted approach: legislative alignment with treaty obligations, institutional reforms to strengthen investigation and prosecution capacities, public awareness campaigns to combat impunity, and active engagement with international monitoring mechanisms. States should also leverage technical assistance and peer-learning opportunities through platforms like the United Nations to address capacity gaps and share effective strategies.

Conclusion

Enforced disappearances remain a profound global crisis, stripping individuals of their dignity and leaving societies scarred by impunity and unresolved grief. The International Convention for the Protection of All Persons from Enforced Disappearance offers a critical framework for addressing this issue, establishing clear obligations for states to prevent disappearances, investigate incidents, and provide justice to victims. However, the effectiveness of the ICPPED hinges on how states engage with the treaty, both in terms of legal incorporation and practical implementation. The distinction between monist and dualist approaches shapes the pathway through which treaty provisions become enforceable domestically, while the Vienna Convention on the Law of Treaties provides essential procedural and interpretive guidance for states entering into such commitments.

For the international community to make meaningful progress against enforced disappearances, states must prioritize ratification and implementation of the ICPPED, overcoming political and institutional barriers through sustained commitment and cooperation. By aligning national laws with international standards, building robust mechanisms for accountability, and adhering to the principles of treaty law as outlined in the VCLT, states can ensure that the unseen and unheard victims of enforced disappearances are finally given a voice. Only through collective action and unwavering dedication to human rights can the global crisis of enforced disappearances be tackled effectively, honoring the spirit and letter of the ICPPED.

References

• International Convention for the Protection of All Persons from Enforced Disappearance, adopted by General Assembly resolution 61/177 on December 20, 2006. United Nations.
• Vienna Convention on the Law of Treaties, adopted May 23, 1969, entered into force January 27, 1980. United Nations Treaty Series, vol. 1155, p. 331.
• Office of the High Commissioner for Human Rights (OHCHR). (2006). Background to the International Convention for the Protection of All Persons from Enforced Disappearance. Available at: OHCHR Website.
• Rome Statute of the International Criminal Court, adopted July 17, 1998, entered into force July 1, 2002. United Nations Treaty Series, vol. 2187, p. 3.