THE ICCPED Type United Nations General Assembly Resolutio n 29 June 2006 20 December 2006 Drafted Signed Location Effective Condition Signatorie s Parties Paris 23 December 2010 32 ratifications 91 37 .

a State or a political organization. detention or abduction of persons by. . followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons. enforced disappearance has been declared a crime against humanity ‘when committed as part of a widespread or systematic attack directed against any civilian population. support or acquiescence of. with the intention of removing them from the protection of the law for a prolonged period.A CRIME AGAINST HUMANITY Under the Rome Statute of the International Criminal Court (Art. or with the authorization. 7). with knowledge of the attack’. Enforced disappearance is defined as the arrest.

or persecution on political. racial or religious grounds’ UN ENFORCED DISAPPERANCE DECLARATION The UN General Assembly proclaimed in the Enforced Disappearance Declaration that ‘the systematic practice’ of enforced disappearance ‘is of the nature of a crime against humanity’. . extermination. the OAS Convention contains a statement. enslavement. before or during the war.OTHER DECLARATIONS NUREMBERG The modern notion of a crime against humanity was developed during the International Military Tribunal trials in Nuremberg. and other inhumane acts committed against any civilian population. ORGANIZATION OF AMERICAN STATES Likewise. that ‘the systematic practice of the forced disappearance of persons constitutes a crime against humanity’. in its preamble. deportation. Crimes against humanity were defined as ‘murder.

support or acquiescence’ of non-state political organizations. both of which limit the definition of enforced disappearance to an act committed by state-supported actors. This represents a departure from the position under the Enforced Disappearance Declaration and the OAS Convention. .THE ROME STATUTE DIFFERENCE The Rome Statute appears to diverge from this customary trend by extending its definition to include non-state actors — that is. persons acting with the ‘authorization.

LEGAL CONSEQUENCES IN THE ICC Where an act of enforced disappearance is found to amount to a crime against humanity pursuant to the Rome Statute. or the individual must be a national of a state party. . the ICC is not a court of primary jurisdiction. However. an individual may be held criminally responsible under the international jurisdiction of the ICC. it functions to complement existing domestic jurisdictions. BUT… The act for which an individual is to be charged must have either occurred in the territory of a state party to the Rome Statute.

Further. the Court’s jurisdiction can only be initiated either at the instigation of an ICC prosecutor (through a request by a state party93 or at the prosecutor’s own initiative94) or on referral by the Security Council under Chapter VII of the Charter of the United Nations. . the ICC must be satisfied that a state with domestic jurisdiction over the act ‘is unwilling or unable genuinely to carry out the investigation or prosecution’.LEGAL CONSEQUENCES IN THE ICC In order to prosecute an individual under its jurisdiction.

SOME GAPS IN CRIMINALIZATION An act of enforced disappearance is clearly criminalised where it reaches the level. of a crime against humanity. and satisfies the specific elements. It is likely that only in certain circumstances will individual acts of enforced disappearance satisfy the threshold requirements of torture pursuant to the CAT . Whether criminal responsibility attaches to isolated or per se acts of enforced disappearance is less clear.

Sign up to vote on this title
UsefulNot useful