On August 30, the UN commemorates the International Day of the Victims of Enforced Disappearances. The day was established by the UN General Assembly resolution 65/209 of December 21, 2010. It’s purpose is to raise awareness of the wide range of enforced or involuntary disappearances that occur to people all over the world, including “arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”
The day also allows states to consider the fulfilment of their obligations under the International Convention for the Protection of All Persons from Enforced Disappearance (the Convention). This may be a fruitless exercise as only a small number of states ratified that Convention. As of August 2018, only 58 states have ratified the Convention, despite the fact that 97 have signed it. The reluctance of states to ratify the Convention is concerning.
It is concerning because it shows a flagrant lack of interest by states in the victims of enforced disappearances perpetrated by non-state actors (and inadequate action in response). It is also concerning as it may suggest that states are unwilling to ratify the Convention because they are complicit in this practice (and fear the consequences for failure to uphold the duties under the Convention if ratified).
The Convention places several duties upon states that ratified it, including an obligation to the effect that “each State Party shall take appropriate measures to investigate acts defined in article 2 committed by persons or groups of persons acting without the authorisation, support or acquiescence of the State and to bring those responsible to justice (Article 3).”
Effective investigation and prosecution of the crimes are indeed paramount to ensuring justice for the victims but also to discourage further such atrocities. However, effective investigation and prosecutions will never (or rarely) be conducted in countries where the state is involved or complicit in the practice of enforced disappearances, as it will be explained below.
In recent years, the most glaring examples of enforced disappearance conducted by non-state actors are those perpetrated by Daesh and Boko Haram. Both terror groups have used enforced disappearance as a method of waging war against the population in the countries where they reign. Both are non-state actors and not bound by the provisions of international law. However, this does not mean that the story ends there.
Interestingly, Nigeria, the country with the most significant presence of Boko Haram in West Africa, has ratified the Convention. As a result, the Nigerian state has certain international obligations to combat the practice of enforced disappearance.
However, as Boko Haram has been successfully moving between other countries, including Chad and Cameroon that have signed the Convention but have never ratified it, there is only so much that the international community can do. Iraq has also ratified the Convention and hence should fulfill its duty to investigate and prosecute the Daesh fighters for their practice of enforced disappearances.
While the Nigerian and Iraqi governments continue to combat the practice of enforced disappearance within the territories of their countries, both countries have also been accused of resorting to the practice of enforced disappearance in their counter-terrorism strategies. For example, the Nigerian Security Forces have been accused of using various counter-terrorism methods that fall within the definition of enforced disappearance.
If factually accurate, Nigeria would be in breach of its Convention obligations. Further, as Nigeria is a party to the Rome Statute, it means that Nigeria could also face consequences under this treaty too. Indeed, this is one of the reasons why the Office of the Prosecutor of the International Criminal Court included two cases against the Nigerian Security Forces in its preliminary examination of the situation in Nigeria.
If the cases proceed, it means that members of the Nigerian Security Forces may be prosecuted for crimes against humanity for their involvement in the enforced disappearance, among others.
The Iraqi government has also been accused of using enforced disappearance against Daesh fighters or those accused of collaborating with Daesh. This would also place Iraq in breach of its Convention obligations. However, contrary to Nigeria, Iraq is not a party to the Rome Statute and hence it is very unlikely that any independent judicial body will look into its practice.
On the International Day of the Victims of Enforced Disappearances, it is crucial to raise awareness of the issue of enforced disappearance and the need for more states ratifying the Convention. Furthermore, it is paramount to ensure that once ratified, states fulfil their obligations under the Convention.
Ewelina U. Ochab is a human rights advocate and author of the book “Never Again: Legal Responses to a Broken Promise in the Middle East.”