On August 30th each year, the world is reminded that hundreds of thousands of people in at least 85 countries don’t know where their loved ones are, or even whether they are alive or dead. For the victims of enforced disappearance and their families, every day is the Day of the Disappeared
The unrelenting uncertainty and anguish of not knowing the truth of what has happened to their family member is a recognized form of torture for both the disappeared and their families. The crime of enforced disappearance cuts off the disappeared from any access to legal representation or judicial remedies – they are placed “outside all protection of the law.”
“Rampant” global impunity for enforced disappearance has led the United Nations (UN) Secretary-General, António Guterres, and UN bodies to call on all countries to ratify or accede to the Convention for the Protection of all Persons against Enforced Disappearances (Convention or ICPPED). So far, of the UN’s 193 countries, only 72 have ratified or acceded to the Convention. Canada and the United States (US) are not yet among them.
The Secretary General says the crime of enforced disappearance is rife around the world and is used “as a method of repression, terror, and stifling dissent… Lawyers, witnesses, political opposition, and human rights defenders are particularly at risk.” Below are examples of 17 countries where lawyers or defenders have been disappeared or obstructed in their advocacy for victims of enforced disappearance.
Lack of widespread ratification of the Convention contributes to impunity by allowing the continuation of gaps in treaty protection in the majority of countries around the world. Countries that themselves face concerns about enforced disappearance and have not joined or implemented the Convention may lack perceived legitimacy to advocate to other countries about enforced disappearances.
For example, in 2021, Canada led 44 countries at the UN Human Rights Council in a statement criticizing China’s rights violations, particularly in the Uyghur region where disappearances are widespread. China countered by pointing out Canada’s violations against Indigenous Peoples and demanding investigation of hundreds of Indigenous children’s graves at a former Indian Residential School. The next year, the US criticized China’s enforced disappearances of Uyghur people. China retaliated, charging the US with “serious problems of enforced disappearances” and genocide against Indigenous Peoples.
What counts as “enforced disappearance”?
The UN Working Group on Enforced and Involuntary Disappearances (WGEID) describes the elements of the crime as follows:
- Deprivation of liberty against the will of the person;
- Involvement of government officials, at least by acquiescence;
- Refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person.
Three aspects of this definition need to be emphasised.
State acquiescence counts
First, even if no government officials have taken part directly in a disappearance, when a State systematically allows impunity for disappearances perpetrated by private actors it may be considered a form of acquiescence. A State’s pattern of failure of due diligence to conduct complete, impartial, and effective investigations of disappearances may amount to acquiescence.
Short-term enforced disappearances count
Second, short-term enforced disappearances are no exception, as in cases where people are temporarily placed incommunicado in unacknowledged places of detention. The WGEID says there is “no time limit, no matter how short, for an enforced disappearance to occur.” An enforced disappearance “begins at the time of the abduction and extends for the whole period of time that the crime is not complete, that is to say until the State acknowledges the detention or releases information pertaining to the fate or whereabouts of the individual.”
The crime is continuous: “Every minute counts”
Third, enforced disappearance is a continuous crime. Whether short-term or prolonged, the perpetration of the crime continues for every moment from the time of detention or abduction until person or their remains are disclosed. The UN Committee on Enforced Disappearances (CED), which oversees implementation of the ICPPED, has joined the WGEID in insisting that “every minute counts when a person is placed outside the protection of the law. And when a person has disappeared, every minute of anguish spent by his or her relatives without news of him or her is too much…”
Examples: Enforced disappearances in 17 countries
Lawyers or defenders have been subjected to enforced disappearances or obstruction of their advocacy for the disappeared in numerous countries including the following 17 countries (in alphabetical order). Examples are drawn from recent research and submissions by Peacemakers Trust, Lawyers’ Rights Watch Canada, and others. Unless otherwise indicated, the country has not joined the ICPPED.
Afghanistan: Disappearances in the absence of the rule of law
Tens of thousands of people have been forcibly disappeared in Afghanistan over decades. Since the Taliban take-over in August 2021, numerous people have been disappeared amid destruction of the independence of the legal system. Taliban officials have replaced independent judges and taken over the legal profession. Women have been precluded from positions as judges and lawyers. Families of the disappeared have little access to meaningful legal assistance or remedies.
Cambodia: Implicated in cross-border disappearances
Cambodia acceded to the ICPPED in 2013 but has been implicated in enforced disappearances, including the 2020 disappearance in Cambodia of a Thai human rights advocate.
Canada: Impunity for disappearances of Indigenous women and children
Since 2018, the Canadian federal government has been in the process of consulting all levels of Canada’s government about the possibility of acceding to the ICPPED but has set no timeline for consultations. Canada has urged other countries to ratify the ICPPED or to expedite domestic legislation to criminalize enforced disappearances, and has joined UN General Assembly resolutions calling for efforts towards universal ratification of the Convention “as a matter of priority.”
Canada’s legitimacy to advocate regarding enforced disappearance is complicated by its own sketchy record. In 2015, the UN Human Rights Committee and the UN Committee Against Torture expressed concern about Canada’s failure to provide adequate and effective responses to violence, homicides, and disappearances of Indigenous persons. There have been suggestions of acquiescence in enforced disappearance in expert testimony to Canada’s 2019 National Inquiry on Missing and Murdered Indigenous Women and Girls, as well as a recent submission by Peacemakers Trust for Canada’s 4th Universal Periodic Review by the UN Human Rights Council.
In 2002-2004, Canadian officials provided information to the US that resulted in four cases in which Canadians were arbitrarily detained without access to legal representation under anti-terrorist provisions. The US subjected them to “extraordinary rendition” to be detained and tortured in unknown locations in Syria. Canada instituted two Commissions of Inquiry to examine the cases.
After the 2006 report of the O’Connor inquiry into the Maher Arar case, the Canadian government in 2007 apologized, compensated Mr. Arar in the sum of $10.5 million and laid charges against a Syrian official alleged to have tortured him. Three other victims were similarly arbitrarily detained and tortured, at least two of whom were held in secret locations in separate incidents occurring from 2002-2004. Only after the 2008 report of the Iacobucci Commission of Inquiry into the mistreatment of Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, and a 2012 rebuke by the UN Committee Against Torture, did Canada apologize and compensate the three men in 2017 in the amount of $10.5 million each. No Canadian or US officials have been held accountable for their suspected involvement in these crimes of torture and enforced disappearance.
China: Systematic patterns of enforced disappearances
China’s authorities have subjected large numbers of persons in China to enforced disappearance, particularly in the Uyghur region and Tibet. In addition, tens of thousands of persons, including lawyers and defenders have been disappeared. Among them is lawyer Gao Zhisheng, who disappeared in August 2017. Many are disappeared for weeks or months at a time in China’s murky system of Residential Surveillance in a Designated Location (RSDL), where reports of torture are frequent. China has not implemented recommendations of UN bodies regarding disappearances or RSDL. China has also been implicated in cross-border enforced disappearances (see Lao PDR below).
Colombia: The most dangerous place for human rights defenders
Colombia ratified the ICPPED in 2012, but the treaty is not well implemented. In 2022, the Truth Commission of Colombia reported 121,768 unresolved disappearances, most dating from the 1970s.
Enforced disappearances have continued each year even after the 2016 Final Peace Agreement theoretically ended years of armed conflict between the Colombian government and the Revolutionary Armed Forces of Colombia-People’s Army (FARC-EP). More than 300 enforced disappearances were reported during crackdowns on 2021 protests against economic and tax measures that would disadvantage poor people disproportionately.
For decades, human rights advocates have been endangered in Colombia. In 2020 and 2021, the danger escalated, and Colombia is now considered the most dangerous country for defenders. Authorities have also failed to ensure protection of Indigenous defenders threatened with disappearance while promoting awareness of enforced disappearance. Lawyers representing disappeared persons have been obstructed by police seeking the whereabouts of detained clients.
Iran: Women defenders disappeared, tortured, or killed
Iran’s longstanding pattern of enforced disappearance includes continuing failure to disclose or investigate the fate and whereabouts of thousands of dissidents disappeared during 1988 prison massacres and believed to have been extrajudicially executed. Bodies of thousands of disappeared persons are believed to be buried in hidden mass graves.
Relatives and human rights defenders are obstructed or prosecuted for seeking the truth about these continuing crimes. Lawyers and defenders, including women’s rights advocates, have been subjected to enforced disappearances during arbitrary detentions in which they are denied access to lawyers, tortured, ill-treated, or killed.
Lao People’s Democratic Republic: Impunity for disappearances
In 2018, the UN Human Rights Committee expressed concern about prevalent impunity in Lao PDF for enforced disappearances, including its lack of a legal framework to criminalize enforced disappearance. Along with Indigenous Hmong community members, the disappeared in Lao PDR include human rights defender Sombath Somphone, last seen in 2012 with police outside a police station. Recently, Chinese lawyer Lu Siwei was detained by Lao authorities in Vientiane. He had fled China into Lao PDR. and was arrested on 28 July 2023 while trying to board a train to Thailand on his way to rejoin his family in the US. Lao authorities have refused to disclose his whereabouts amid concerns that he will be deported to China where he is likely to be subjected to arbitrary detention or torture.
Myanmar: The military junta’s brutal disappearances
Myanmar’s military authorities have had a longstanding practice of enforced disappearances and incommunicado detention. Enforced disappearances were part of the 2007 crackdown against peaceful protesters during the “saffron revolution” as well as atrocity crimes against Rohingya people.
After the military coup in February 2021, enforced disappearances sky-rocketed. UN experts reported that “in more than half of the recorded cases [of detentions], there is no information about the whereabouts of the detainees, and there has been no official acknowledgement of their detention by the military regime.” As of 30 August 2021, the Assistance Association of Political Prisoners in Burma reported that 82% of the thousands of people listed as detained by the military junta were being held in unknown locations with no access to lawyers or family members. “Untold numbers” of enforced disappearances have been part of the junta’s “reign of terror,” which also includes tens of thousands of extrajudicial killings, thousands cases of arbitrary detention and torture, numerous child abductions, gender-based violence, and bombing attacks on civilians. In 2022 and 2023, UN experts have continued to report enforced disappearances of human rights defenders, including particular risks for women defenders.
Philippines: No end to disappearances since the Marcos regime
In the Philippines, nearly 2,000 enforced disappearances have been recorded since the Marcos administration (1969-1986). In 2012, the Aquino government adopted the Anti-Enforced or Involuntary Disappearance Act making enforced disappearance punishable by life imprisonment, but lack of effective investigations and continued enforced disappearances mean that at least 1,100 remain missing. At least one lawyer and several defenders are among the disappeared, including two Indigenous defenders missing since April 2023.
Russian Federation: A scourge of disappearances in Russia and Ukraine
Russia’s longstanding, systematic practice of enforced disappearances involves targeting of dissidents, journalists, defenders, and opposition politicians in several regions of the Russia Federation and occupied territories of Ukraine. In 2016, the Council of Europe’s Commission on Human Rights noted Chechnya as the most severely affected by the “scourge of enforced disappearances” with thousands remaining unaccounted for.
The European Court of Human Rights (ECtHR)has found Russia responsible for (or acquiescent in) a number of enforced disappearances or for failing to investigate, including the abduction and murder of Chechen republic defender Natalya Estemirova on 15 July 2009. Ms. Estemirova was known for investigating serious human rights violations, including enforced disappearances.
Impunity for enforced disappearances is facilitated by harassment of relatives of disappeared persons, human rights defenders, and lawyers. Russia has not complied with ECtHR rulings, nor has it implemented UN human rights bodies’ recommendations.
In 2022, the UN Human Rights Committee expressed grave concern about ongoing enforced disappearances in Russian-occupied areas of Ukraine, including Crimea. Hundreds were disappeared in Ukraine from 2014-2016. In June 2022, the UN Human Rights Monitoring Mission in Ukraine (HRMMU) documented hundreds of enforced disappearances reportedly perpetrated by Russian armed forces or their affiliates during the first 100 days of the current armed conflict. Defenders in Ukraine have been disappeared after being detained and taken to unknown locations where they are held for days, weeks or months without access to families or lawyers. By 2023, short-term abductions and disappearances were prevalent throughout Russia. Suspected sympathizers with Ukraine are at particular risk.
Saudi Arabia: The Jamal Khashoggi disappearance is not isolated
The WGEID has expressed concern about Saudi Arabia’s widespread and systematic enforced disappearances of dissidents, journalists including Jamal Khashoggi, and several human rights defenders.
South Sudan
The UN Mission in South Sudan reported in 2014 that enforced disappearances were among the grave human rights violations perpetrated with impunity by both sides of the country’s lengthy internal armed conflict. At least two lawyers have been subjected to enforced disappearance in 2017 and 2023.
Sri Lanka: No effective investigations
In Sri Lanka at least 60,000 persons have been disappeared since the late 1980s. While Sri Lanka ratified the ICPPED in 2016 and criminalized enforced disappearances in 2018, families of the disappeared continue to wait for effective investigations to uncover the truth of what happened to disappeared loved ones. Threats were made in 2020 against at least one lawyer representing relatives of persons forcibly disappeared allegedly by Sri Lankan Navy officers in 2008-2009. The WGEID has expressed concern about impunity for intimidation or obstruction of relatives and defenders investigating the fate and whereabouts of disappeared persons.
Sudan: Decades of disappearances to silence opponents
Sudan’s authorities have engaged in enforced disappearance for decades to silence human rights defenders, opposition leaders, students, academics, and journalists. Enforced disappearances last from weeks to several months, during which detainees are tortured but later freed. After the 25 October 2021 military coup, military authorities reportedly held hundreds of people in arbitrary, incommunicado detention and subjected many to ill-treatment, enforced disappearance, or killing. In 2022, the WGEID noted allegations of enforced disappearances of a number of defenders.
Thailand: Delayed ratification of the ICPPED
There are numerous historical enforced disappearances in Thailand as well as enforced disappearances of a human rights lawyer Somchai Neelapaichit in 2004, and several human rights defenders in 2014, 2018, and 2019. Thailand signed the ICCPED in 2012 but has yet to ratify it. There have been delays in implementing sections of new domestic criminal legislation against enforced disappearances that would require officials to record and provide information about arrests.
Türkiye (Turkey): Disappearances under the pretext of anti-terrorism
In 2022, the WGEID noted that in Türkiye “at least 1,352 people have disappeared since the military coup in 1980.” During the 1990s, many missing people never resurfaced. Lawyers and human rights defenders seeking the truth have been subjected to intimidation and arbitrary detention. Since the failed coup of 2016, those subjected to enforced disappearance often reappear, but enforced disappearances are used to silence opposition under the pretext of combatting terrorism.
United States: “Extraordinary rendition” a euphemism for enforced disappearance
The US has allowed impunity for officials involved in numerous instances of alleged enforced disappearance of persons it suspected of involvement in terrorism, euphemistically called “extraordinary rendition,” particularly from 2002 to 2006 (see also Canada above). More recently, the US has publicly decried enforced disappearances while joining consensus General Assembly resolutions that call for increased efforts towards assisting States to consider becoming parties to the Convention “as a matter of priority.” However, the US has taken no steps to do so, thus reducing its credibility to advocate against enforced disappearances by other States.
The importance of universal ratification
Enforced disappearances strike at the heart of the rule of law. The litany set out above is a fraction of the global menace that enforced disappearance poses for human rights advocates, dissidents, and journalists. Successive UN General Assembly resolutions – reached by consensus of all UN members States – confirm a global commitment on paper to eliminating enforced disappearances, including global ratification of the ICPPED.
It is time to move from words to action. This year’s Day of the Disappeared is the time for governments around the world to muster the political will to work for an end to enforced disappearances by ratifying the Convention – and implementing it. Implementation involves creating stand-alone laws to criminalize enforced disappearance as set out in the Convention. Every victim of enforced disappearance is entitled to justice, and to know the truth about what has happened to their loved ones. Implementation also entails prompt, independent, effective, and thorough investigations of every case of potentially unlawful disappearance without exception.
With permission, this article draws largely on recent and forthcoming submissions to the UN Human Rights Council initiated by Peacemakers Trust and joined by Lawyers’ Rights Watch Canada (LRWC) and others. Author Catherine Morris serves as director of Peacemakers Trust and a monitor for LRWC.
First published in Slaw: Canada’s online legal magazine on 30 August 2023. Republished with permission of the author.