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IV. “Disappearances” in Law and History

“Disappearances” have come to be regarded as a quintessential evil practiced by abusive governments. The method seems to have been invented by Adolf Hitler in his Nacht und Nebel Erlass (Night and Fog Decree) of December 7, 1941. The purpose of this decree was to seize persons in occupied territories “endangering German security” who were not immediately executed 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. ⁵²  

“Disappearances” were practiced on a large scale in Latin American by regimes supported by the United States. The tactic was in part a response to the success of the human rights movement in shaming governments for other human rights abuses, such as torture—and in mobilizing U.S. public opinion against the imprisonment and killing of peaceful dissenters by client states. By keeping violations out of sight, governments made the abuses harder to trace and to condemn, and were thus able to avoid scrutiny and accountability.

In the late 1960s, the Guatemalan security forces began to use forced disappearances—secretly arresting, torturing, and killing its opponents—as part of its counter-insurgency campaign. In the 1970s and 1980s, military regimes throughout Latin America, including Chile, El Salvador, Honduras, Colombia, and Nicaragua, engaged in forced disappearances.

When discovered, the Latin American dictatorships sought to justify their abuses by invoking the threat posed by leftists and “terrorists.” During the transition to democracy in Argentina, for instance, the military published a “Final Document on the Struggle Against Subversion and Terrorism,” which purported to provide a legitimate explanation for the “disappearances.”

The practice has spread far from its roots, however. Iraq and Sri Lanka are the countries with the most cases of “disappearances” between 1980 and 2003. ⁵³ In Algeria, thousands of persons were "disappeared" during the civil strife of the 1990s and remain unaccounted for. ⁵⁴

Under international law, forced disappearances (or enforced disappearances), as they are officially called, are considered one of the most serious violations of the fundamental rights of human beings, as well as an “offence to human dignity” ⁵⁵ and “a grave and abominable offense against the inherent dignity of the human being.” ⁵⁶ The United Nations General Assembly has said that forced disappearance “constitutes an offence to human dignity, a grave and flagrant violation of human rights and fundamental freedoms […] and a violation of the rules of international law.” ⁵⁷ Persuant to the Rome Statute of the International Criminal Court, the systematic or massive practice of “disappearances” can constitute a crime against humanity. ⁵⁸

“Disappeared” detainees are cut off from the outside world, deprived of any legal protection, and subject to the whim of their captors. One element that characterizes and is specific to forced disappearance is that it removes the individual from the protection of the law. ⁵⁹ This characteristic has the effect of suspending enjoyment of all of the rights of the “disappeared” person and placing the victim in a situation of complete defenselessness. ⁶⁰

Most often around the world, “disappeared” prisoners have been tortured and then secretly killed. However there are many instances of “disappearances” in which detainees were not killed and indeed ultimately “reappeared.” In Morocco, for instance, hundreds of suspected government opponents of Moroccan and Western Saharan origin “disappeared” beginning in the 1960s. They were held in “villas in residential areas, secret police facilities, isolated farms, former military camps or barracks, and ancient fortresses.” ⁶¹ Many had been held in the remote barracks of Tazmamart, a detention center whose very existence had been denied by the authorities. In 1991, after international outrage crested, more than 300 such prisoners were released, some after being held in secret detention up to nineteen years. In Argentina, the Inter-American Commission on Human Rights was able to locate “disappeared” prisoners during a 1979 on-site visit. ⁶²

The Definition of “Forced Disappearances” in International Law

“Forced Disappearance” has been defined in several recent international instruments. ⁶³

According to the Declaration on the Protection of all Persons from Enforced Disappearance, adopted by the U.N. General Assembly in 1992, enforced disappearances occur when

persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, … followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law… ⁶⁴

The Inter-American Convention on Forced Disappearance of Persons adopted in 1994 ⁶⁵ defines forced disappearance of persons as

the act of depriving a person or persons of his or her freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees. ⁶⁶

“Enforced disappearance,” the systematic practice of which can be a crime against humanity, was defined by the Rome Statute of the International Criminal Court as the

arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that 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 for a prolonged period of time. ⁶⁷

Each of these definitions involves four elements

            (a)         Deprivation of liberty against the will of the detainee;

            (b)        Direct or indirect involvement of government officials;

(c) Refusal to acknowledge the detention or to disclose the fate and whereabouts of the person concerned; and

(d) The removal of the detainee from the protection of the law.

United States courts have said that the tort of “disappearance” “is characterized by the following two essential elements: (1) abduction by state officials or their agents; followed by (2) official refusals to acknowledge the abduction or to disclose the detainee's fate.” ⁶⁸

The cases described in this report fit the definition of forced disappearances because the United States has detained these people and refused in each case either to acknowledge the detention or to give information on the fate or the whereabouts of these detainees, precisely for the purpose of removing them from the protection of the law.

The Absolute Ban on “Disappearances”

“Disappearances” are banned in all situations. According to the Declaration on the Protection of All Persons from Enforced Disappearance, “No circumstances whatsoever, whether a threat of war, a state of war . . . may be invoked to justify enforced disappearances.”

The International Committee of the Red Cross (ICRC) has said

No matter how legitimate the reasons for a person's detention, no one has the right to keep that person's fate or whereabouts secret or to deny that he or she is being detained. This practice runs counter to the basic tenets of international humanitarian law and human rights law. ⁶⁹

Legal Prohibitions on Incommunicado Detention

International law also bars incommunicado detention, even when it does not constitute “disappearance.” The authoritative Restatement (Third) of Foreign Relations Law of the United States lists categories of acts that violate customary international law.  Section 702 (Customary International Law of Human Rights) provides that a state violates international law if, as a matter of state policy, it practices, encourages, or condones (a) genocide, (b) slavery or slave trade, (c) the murder or causing the disappearance of individuals, (d) torture or other cruel, inhuman, or degrading treatment or punishment, (e) prolonged arbitrary detention, (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights. ⁷⁰

Under the International Covenant on Civil and Political Rights (ICCPR), which the United States has ratified, all prisoners are to be treated “with humanity and with respect for the inherent dignity of the human person.” ⁷¹ States have a duty to take effective action to minimize the risk of torture. The elected Human Rights Committee, which monitors the ICCPR, has stated:

To guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends. To the same effect, the time and place of all interrogations should be recorded, together with the names of all those present and this information should also be available for purposes of judicial or administrative proceedings. Provisions should also be made against incommunicado detention. ⁷²

The Third Geneva Convention in article 126 (concerning prisoners of war) and the Fourth Geneva Convention in article 143 (concerning detained civilians) requires the ICRC to have access to all detainees and places of detention. Visits may only be prohibited for “reasons of imperative military necessity” and then only as “an exceptional and temporary measure.” These provisions also require that prisoners be documented, and that their whereabouts be made available to their family and governments.

It is also not clear what U.S. law allows officials to hold these suspects in prolonged incommunicado detention. In June 2004, the U.S. Supreme Court ruled that the Authorization for Use of Military Force Act, which Congress passed after September 11 authorizing the President to pursue al-Qaeda and its supporters, gave him the power to detain enemy forces captured in battle. Speaking for the plurality of the Court, however, Justice Sandra Day O’Connor said, “Certainly, we agree that indefinite detention for the purposes of interrogation is not authorized.” ⁷³ United States law considers both “prolonged detention without charges and trial,” and “causing the disappearance of persons by the abduction and clandestine detention of those persons” to constitute “gross violations of internationally recognized human rights.” ⁷⁴