Crime of Enforced Disappearance: Nature, Scope and Impact

Paper Details 

Paper Code: RP-VBCL-23-2025

Category: Research Paper

Date of Publication: April 20, 2025

Citation: Prof. (Dr.) Aneesh V. Pillai & Mr. Georgekutty Mathew, “Crime of Enforced Disappearance: Nature, Scope and Impact", 2, AIJVBCL, 327, 327-340 (2025).

Author Details: Prof. (Dr.) Aneesh V. Pillai, Associate Professor,School of Legal Studies Cochin University of Science and Technology, India

Mr. Georgekutty Mathew, Research Scholar, School of Legal Studies Cochin University of Science and Technology, India

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ABSTRACT

The crime of enforced disappearance and the humanrights violations associated with this crime became serious concern of international criminal lawafter the Second World War. During the Nuremburg Trials,The Nuremburg International Military Tribunal (IMT) established the practice of enforced disappearance as a war crime which violates multiple human rights of the victims and later the NMT declared the practice of enforced disappearance as a war crime as well as a crime against humanity. Fromthe evaluation of developmentsof law relating to enforceddisappearance, it can be understood that, the enforced disappearance is a crime against humanity which violate multiple human rights of the victims under the international criminal law. On the analysis of the concept of victims of enforced disappearance,it can be seen that the victims of this crime not onlylimited to the persons subject to deprivation of the liberty butalso includes all persons suffered any direct harm due to the crime and has the right to get remedy. The basic objective of this research is to analysis the nature, scope and impact of crime of enforced disappearance. This research is divided in to three parts. The first part of this research will discuss the concept, meaning and the elements of crime. Then first part of this research is also discussing about the concept of crime under international law. The second part of this research is discussing about the crime of enforced disappearances and its nature, scope and elements. The last part of this research is focused on the concept of victims of enforced disappearancesand this part made a detailed discussions about the impact of enforced disappearanceson victims.

Keywords; Enforced Disappearance, Crime, International Criminal Law, Victims, Convention against Enforced Disappearance

INTRODUCTION

The crime of enforced disappearance and the human rights violations associated with this crime became serious concern of international criminal law after the Second World War. UN took a number of initiatives to address the issues connected with the practice of enforced disappearances. The enforced disappearance was used by Hitler as a tool to fight against his enemies. After The Second World War, Nuremburg trials unveiled the evil face of practice of enforced disappearances committed by the Hitler as the part of government policy. During the Nuremburg Trials, the IMT established the practice of enforced disappearance as a war crime which violates multiple human rights of the victims and later the NMT declared the practice of enforced disappearance as a war crime as well as a crime against humanity.

It is also important to note that even after the Second World War different countries used enforced disappearances as a tool to fight against enemies. So, the UN and other international organizations working to protect the human rights and fundamental freedoms raised sound against this crime. Those initiatives were help to make a convention against enforced disappearances in international level.  From the evaluation of developments of law relating to enforced disappearance, it can be understood that, the enforced disappearance is a crime against humanity which violate multiple human rights of the victims under the international criminal law. On the analysis of the concept of victims of enforced disappearance, it can be seen that the victims of this crime not only limited to the persons subject to deprivation of the liberty but also includes all persons suffered any direct harm due to the crime and has the right to get remedy.

The basic objective of this research is to analysis the nature,scope and impact of crime of enforced disappearance. This research is divided in to three parts. The first part of this research will discuss the concept, meaning and the elements of crime. Then first part of this research is also discussing about the concept of crime under international law. The second part is discussing about the crime of enforced disappearances and its nature,scope and elements. The last part of this research is focused on the concept of victims of enforced disappearances. This part made a detailed discussions about impact of enforced disappearanceson victims

RESEARCH METHODOLOGY

This study adopts a doctrinal research methodology, focusing on the analysis of legal frameworks, international conventions and jurisprudence regarding the crime of enforced disappearance. The primary materials for this research include international legal documents, Court judgments, declaration  and conventions, such as the International Convention for the Protection of All Persons from Enforced Disappearance, and related UN declarations. Secondary sources, including books, journal articles, and case law commentaries, are used to interpret and analyse the development and application of the laws concerning enforced disappearance. This qualitative research examines how criminal law defined and categorized enforced disappearance.

CONCEPT AND MEANING OF CRIME

Attempt to make a clear definition for the concept of crime is considering as a difficult task, because the nature of crime and outcomes of crimeare dynamic and highly depends on the criminal and penal policy of the states. The famous jurist J W Turner expressed his opinion that definition of crime has always being a matter of great difficulty and it is not possible to make a fully effective definition for the crime[1]. The pattern of human behaviors prohibited by the criminal law at a given time in particular society will depend on the different elements of the society like social values,ideologies,culture etc. So the concept of crime changes age to age and defers states to states .The political power has the responsibility to declared particular act or omission as a crime. According to the opinions of the sociologist, acts which threaten or attempt to threaten the realization of interest which are preserve by every states find the place in the criminal law .

It is very clear from the above discussions that the concept of crime is dynamicand it is not possible to give a clear definition for the crime. But in certain circumstances many eminent jurist tried to make a definition for the crime. According to the famous book, Commentaries on the Law of England of Sir William Blackstone, crime is an act committed or omitted in violation of public law forbidding or commanding it[2]. This definition of crime faced certain criticism based on the expression violation of public law, because the concept of public law was possible to interpret in different manner. According to Austin the public law is identical with the constitutional law. If this view is accepted in the definition of crime, it will limit the scope of the crime to political offences only.

But the same time other jurist equates the concept of crime with the positive law or the municipal law of the state. Later Blackstone defined the concept of crime in the terms of public rights and duties.According to him, crime is a violation of public rights and duties due to whole community. But this definition also considered as inadequate because this definition define the crime in terms of right and duties. The violation of right and duties is not the main concern of the criminal law. it’sgenerally the matter connected with civil law. Different efforts were taken by different jurist to define the concept of crime in terms of morality, ethicsetc. .But thoseefforts were not became success full because those definitions were failed to include all sides on a crime in a single definition.

On the analysis of the modern definitions related to crime, it can be seen that modern definitions are more general and capable of including the changes happening in the society. Russell defined the concept of crime as a result of human conduct which the penal policy of the state seeks to prevent. The Halburyes Law of England defined crime as a unlawful act or default which is an offence against the public and render the person guilty of the act or default liable to legal punishment. In India, IPC section 40 defined that an offence denotes a thing made punishable by the Code[3]. According to the opinions of the Michael and Adler the most effective definition of the crime is that which define it as the act which prohibited by the criminal law and as perthis opinion definition of crime in the Indian Penal Code is a good definition

From the above discussions, it is very clear that it is impossible to make a clear definition for the term crime. Because the concept of crime is a dynamic in nature and its meaning . The nature of crimes will change time to time depending on the change on the society hence modern jurisprudence is following functional approach rather than a definitional approach. The general  basic functions of the criminal law is to maintain the public order and decency, to protect the citizens from what is offensive and injuries and provided safeguards from any kind of exploitation of others[4]. So it can be concluded that  the criminal law is a living concept and it must be able to accept the changers in the society  and state are responsible to make new offences and in certain times states has the responsibility to decriminalize certain offences based on the changes happening in the society.

ELEMENTS OF CRIME

Concept of crime is dynamic in nature and the nature and scope of the crimes will change according to the changes happening in the society .The crime can be generally defied as act or omission which is not approved by the society. There must be at least two parties in a crime, the person doing the crime and the victim. Generally the crimes has  two basic elements. First one is the mental and the second one is the physical. The mental element or the intention is expressed by using the term mens rea and the physical element is expressed by using the term actus reas. Generally, an act cannot be consider as a crime unless it is proved that the act is committed with a guilty mind and guilty act. The common law maxim “actus non factireum nisi mens sit resa” convey this concept according to this principle an actscannot be consider as a crime without an evil act and guilty mind.

In England and India the doctrine actus non factireum nisi mens sit resa is incorporated in the most of the crimes. But certain crimes are punishable without guilty mind.According to Lord Goddard, it is the responsibility of the court to ensure the presence of mense rea in an offence unless it is expressly ruled out by the statue[5]. So in every criminal action, it is the responsibility of the court to interpret the mens rea as important element of a crime unless it is expressly ruled out by the statute.Hence it is a general principal that actus reas and the mens rea are the two important element of a crime. But this general principles is subject to some exception that if the statue expressly rule out the presence of mens rea in an offence, it is not necessary for the court to look in to the mental state of the offender.

 

CRIME UNDER INTERNATIONAL LAW

In municipal level,basic objective of the criminal law is to protect and maintain public order. According to the Salmond a crime is an act deemed by the law to be harmful to the society in general even though the immediate victim is an individual. In the criminal law remedy is given in the form of the punishment[6]. It is clear that crimes are social evilwhich causes damages or harm full effect on the society. The aim of criminal law is the protection of the fundamental social interest of the society. Now the important question is that, what are the functions of international criminal law in international level? It is very difficult to specify the functions of criminal law in international level but generally,It is possible to explain that the function ofinternational criminal law is to preserve and protect the public order of the world and to punish the activities which attempt to disturb the public order orintolerable to the community of nations[7]. According to the opinion of the Prof.Quincy Wright the crime against the international law can be defined as an act committed with an intend to violate the fundamental interest protected by the international criminal law or with a knowledge that act probably violate such interest and which may not be punishable by the application normal jurisdiction of a state[8].

In the development of the international criminal law the establishment of United Nations played an important role by creating internationally binding treaties. The first initiative taken by the UN General Assembly is the adoption of the principles of the Nuremburg Charterin 1946,there by increase the scope of jurisdiction of briligent states in future wars to war crimes, crime against peace and crime against humanity[9]. The aim of the Nuremburg Trial was to prosecute and punish the major war criminals of Second World War.After the Second World War, United States ,United Kingdom,France and Soviet Union were took  initiatives to conduct first international criminal law trial at Nuremburg International Military Tribunal (IMT). The establishment of IMT and the trialsare considering as one of the revolutionary movement in the history of the development of the international criminal law.

After the adoption of principles of Nuremburg Trial, UN adopted a number of legal instrument related to the international criminal law . One of the importdocument adopted by the UN was the Genocide Convention of 1948.The Article 1 of the Convention declared that genocide is a crime under international law and it impose individual liability on the person committing the offence. After the adoption of the genocide convention, the adoption of Geneva Conventions in 1949  and the establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda and several other ad hoc international tribunals contributed in different ways in the development of international criminal law. The attempts to creation of an international criminal court were started years back. But it was only get positive result in 2002. In 2002 by the adoption of Rome Statue the International Criminal Court came to exist. ICC has the power to prosecute individual for committing international crimes come under the jurisdiction like crime of genocide, crime against humanity etc.

CRIME OF ENFORCED DISAPPEARANCE

According to Article 2 of the Convention against enforced disappearance, the crime of enforced disappearance can be defined as arrest, detention, abduction or any other form of deprivation of liberty by the agents of the states or person or group of persons acting with the authorization or support of the state, followed by refusal to acknowledge the deprivation of the liberty or the concealment of fate or whereabouts of the disappeared person and which places the disappeared person outside the protection of the law[10]. The widespread or systematic practice of enforced disappearance is considering as a crime against humanity under the international law and the person committing the such offence is liable under the international law[11].

The Convention established a clear and specific definition for the crime of enforced disappearance and according to it, the practice of enforced disappearance contains three major elements.  First element is the deprivation of liberty of the victim, the second element is the involvement of the government officials or at list acquiescence of the government and the third element is the refusal to acknowledge the deprivation of the liberty or the concealment of the fate or whereabouts of the disappeared person and which placing the person outside the protection of the law[12].  It is also important to note that these elements also can be seen in the definition of enforced disappearance in the previous normative instruments like UN Declaration on the Protection of All Persons from Enforced Disappearance and Inter-American Convention on Forced Disappearance of Persons[13].

On the analysis of the development of law relating to crime of enforced disappearance under international criminal law, it can be seen that, during the Second World War Hitler used the practice of enforced disappearance as a tool to fight against his enemies. Later different states used this practices for different purposes. In international law the practice of enforced disappearance is considering as a crime against humanity which violates a number of human rights. The Nuremburg trial was considering as the first instance which applied the principles of international criminal law to the practice of enforced disappearance. The Nuremburg Trial judgments declared the practice of enforced disappearance as a war crime and a crime against humanity. After the Nuremburg Trials different tribunals and the courts establish the practice of enforced disappearance as a crime against humanity under international law. In 1992 UN adopted a declaration against enforced disappearance and later in 2010 UN adopted a binding convention against enforced disappearance by those initiatives UN declared enforced disappearance as a crime against humanity which violate multiple human rights of the victims. The Rome statue also recognized the enforced disappearance as a crime against humanity.

CRIME OF ENFORCED DISAPPEARANCEAND THE VICTIMS

The persons those who are experiencing any kind of injury, hardship or loss due to a crime is called as victims of a crime and study of the people those who experience physical, physiological, emotional or financial loss or hardship due to the crime is called victimology[14]. The victims are the persons those who suffered any kind of harm due to the actions of a perpetrator of a crime. UN General Assembly adopted a declaration called Declaration of Basic Principals of Justices for Victims and Abuse of Power on November 1985 and Article 1 of the declaration defined the concept of victims of crime as persons those who are suffered any kind of physical or mental injury, emotional suffering, economic loss or violation of fundamental rights individually or collectively as a result of an act or omissions which are the violation of criminal laws of member states including the criminal abuse of power[15]. So it’s clear from the definition victims of crime under the Declaration that victims are persons those who experience any kind of loss or suffering due to the violation of criminal law of the state or abuse of power by the stare. As the continuation of Article 1 of the Declaration Article 2 says that, it is not necessary to identify and prosecute or convict the perpetrator of a crime to consider a person as a victim of a crime[16]. If a person suffered harm or injury due to the violation of criminal law, he can be consider as a victim and eligible to call all right which are available for a victim regardless of the relationship and status of the person committed the offence. The  Article 2 also pointed out that all persons including the family member of the victim and persons effected any kind of injury due to the crime can be consider as victims of the crime[17].

Based on the level of damage caused to a person, victims can be divided in to three categories, primary victims, secondary victims and tertiary victims, The persons those who directly suffered loss or injury can be called primary victim of the crime[18] . the persons those who suffered injury or loss due to the injury cased to primary victim is called secondary victim[19] and the tertiary victims denotes the another person’s besides the immediate victims, those who are victimized due to the crime persons actions[20].The concept of primary, secondary and tertiary victims can be explained based on an example of crime of enforced disappearance. In the case of enforced disappearance the person who deprived of his liberty by the state or agent of the states with the help and support of the state is the primary victim of the crime and the family members and the depended of the disappeared person is the secondary victims of crime because they have to live with a lot of uncertainties related to the fate and were about of the person disappeared .If the disappeared person is the only earning member of the family the rest of the family will have to face lot of economic and mental hardship in their life due to the crime. If the disappeared person is a pregnant woman, her child also can be considered as a victim of the crime. In certain cases of enforced disappearance, the society as whole can be consider as a tertiary victim of the crime, when the enforced disappearance is used as tool to make fear in the society by the government.

During the Second World War Hitler used enforced disappearance as a tool to make terror and deterrent effect on the society[21]. In those cases the society as whole can be considered as the victims of the crime of enforced disappearance. It is also important to note that, if a person is suffered any kind of lose or harm due to any kind of abuse of power by the government or by any authority, he can be considered as victim of abuse of power[22]. In the case of enforced disappearance, it is an offence committed by the states or the agents of the states with the supports and authorization of the state by abusing the power and which violate multiple human rights and fundamental freedoms of the victims. Hence it is clear that the victims of enforced disappearance are victims of crime as well as the victims of abuse of power.it also important to note that all three categories of victims have equal right to get proper remedy for the injury suffered by them.

On the analysis of the concept of victims of enforced disappearance under the Declaration on the Protection of all Persons from Enforced Disappearance and The International Convention for the Protection of All Persons from Enforced Disappearance, it can be understood that both documents accepts not only the disappeared persons as the victims but also all persons suffered any direct loss or harm as the result of enforced disappearance are consider as the victims of the crime of enforced disappearance[23]. It is also important to note that both document imposes the responsibility to protect the interest and rights of the victims on the states. The protection of the rights of the victims is essential for ensuring the justice for the victims. The rights of victims can be divided generally in four categories. The first right of the victim is the right to access to justice and fair treatment. According to this right the victims must be treated with compassionate and dignity and he must be able to approach the judiciary without any kind of fear and limits[24]. The second right is the right to restitution. It includes appropriate and faire restitution to the all victims of the crime including families, dependents[25]. In the cases of crimes like enforced disappearance the society has important partin restitution. The restitution must be made in all dimensions in which the damages are caused to the victims. The third right is the right to compensation. If the offender is not able to pay the appropriate compensation to the victim , it is the responsibility of the state to give proper compensation to the physical, mental injuries happened to the victims as the part of the crime. The UN Declaration requested for the establishment of a National Fund for Compensate the Victims of a Crime[26]. The fourth right of the victim is the right to assistance. The right to assistance means any kind of mental, medical, psychological and social assistance with the help of the government or other voluntary association.it also include the protection of governmental agencies like police and assistance to get justice through the court of law[27].

CONCLUSION

The purpose of criminal law is to is to maintain the public order and decency, to protect the citizens from what is offensive and injuries and provided safeguards from any kind of exploitation of others .  Defining the concept of crime is a very difficult task, because the scope and meaning of the crime will change according to the changes happening in the society. Different jurists tried to make a definition for the crime but every definition faced certain criticism. It is possible to define the crime in a general sense as an unlawful act or default which is an offence against the public and render the person guilty of the act or default liable to legal punishment. In India, IPC section 40 defined that an offence denotes a thing made punishable by the Code. In England and India the doctrine actus non factireum nisi mens sit resa is incorporated in the criminal system.  It means generally the crimes have two basic elements. First one is the mental and the second one is the physical. The mental element or the intention is expressed by using the term mens rea and the physical element is expressed by using the term actus reas. Generally an act cannot be considered as a crime unless it is proved that the act is committed with a guilty mind and guilty act. But certain crimes are punishable without guilty mind.

In relation to international criminal law, The basic objectives of it is to preserve and protect the public order of the world and to punish the activities which attempt to disturb the public order or intolerable to the community of nations After The Second World War, a number of developments was made in the field of international criminal law under the leadership of UN. The first initiative of the UN General Assembly was the adoption of the Nuremburg Charter in 1946 which established an International Military Tribunal (IMT). to prosecute and punish the person responsible for the war and human right violations with jurisdiction on war crimes, crime against peace and crime against humanity .After the adoption of principles of Nuremburg Trial, UN took a number of initiatives in the development of  international criminal law like adoption of  Genocide Convention of 1948  and Geneva Conventions of 1949  and the establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda and several other ad hoc international tribunals. It is also important to note that in 2002 by the adoption of Rome Statue the International Criminal Court came to exist. ICC has the power to prosecute individual for committing international crimes come under the jurisdiction of The Court like crime of genocide, crime against humanity etc.

The initial developments of concept of crime of enforced disappearances can be found in IMTjudgements The IMT was the first international institution which discussed about the inhuman face of the practice of enforced disappearance and declared enforced disappearance as a war crime which violate multiple human rights of the victims. After the IMT judgments, The NMT declared enforced disappearance as a war crime as well as a crime against humanity. The International Convention for the Protection of All Persons from Enforced Disappearance expressed that widespread or systematic practice of enforced disappearance as a crime against humanity under the international law which attracts the consequences under international law. So now it is a well-established fact that under the international criminal law enforced disappearance is a crime against humanity. The victims are the persons those who are suffered any kind of physical or mental injury, emotional suffering, economic loss or violation of fundamental rights individually or collectively as a result of an act or omissions which are the violation of criminal laws of states including the criminal abuse of power. In the cases of enforced disappearance the victim are the persons those who are suffered any physical or mental or any other injury or loss  as a direct consequence of the crime of enforced disappearance .The victims of enforced disappearance includes not only the person whose liberty is deprived but also all other person suffered any harm due to the enforced disappearance of a person, it includes his family members friends some time the society as whole may be become the victim of enforced disappearance.

* Associate Professor,School of Legal Studies Cochin University of Science and Technology, India

** Research Scholar, School of Legal Studies Cochin University of Science and Technology, India

[1]PS Atchuthen Pillai and KI Vibhute, PSA Pillai’s Criminal Law (14th edition, LexisNexis 2021) 2.

[2]ibid 12.

[3] Indian Penal Code 1860,S 40

[4]Atchuthen Pillai and Vibhute (n 1) 14.

[5]Srinivasa Rao Myneni, Crime and Criminology (First edition, Allahabad Law Agency 2017) 3–4.

[6]SK Kapoor, International Law and Human Rights (twenty first edition, Central Law Agency 2017) 381.

[7]ibid.

[8]ibid.

[9]Historical Origins of International Criminal Law. Volume 4 (Torkel Opsahl Academic EPublisher 2015) 20.

[10] International Convention for the Protection of All Persons from Enforced Disappearance 2010, Art 2

Article 2

For the purposes of this Convention, "enforced disappearance" is considered to be the 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 authorization, 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.

[11]  International Convention for the Protection of All Persons from Enforced Disappearance 2010, Art 5

Article 5

The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.

[12]Philip Linghammar, ‘Time for Enforced Disappearance to Disappear’ 2nd Term Paper

Human Rights StudiesAutumn 200839, 11–12.

[13]Andreas Von Arnauld, Kerstin Von Der Decken and Mart Susi (eds), The Cambridge Handbook of New Human Rights: Recognition, Novelty, Rhetoric (1st edn, Cambridge University Press 2020) 431 <https://www.cambridge.org/core/product/identifier/9781108676106/type/book> accessed 4 May 2023.

[14]NV Paranjape, Criminology & Penology: (Including Victimology) (Eighteenth edition, Central Law Publications 2019) 765.

[15] Declaration of Basic Principals of Justices for Victims and Abuse of Power on November 1985 Art 1

[16] id at Art2

[17] id at Art 2

[18]JasjitPranjall ’Victim and Victimology in India’ Legal Service India, available at https://www.legalserviceindia.com/legal/article-5841-victims-and-victimology-in-india.html legalserviceindia.com

[19]ibid.

[20]NV Paranjape, Criminology & Penology: (Including Victimology) (Eighteenth edition, Central Law Publications 2019). 769–770.

[21]Tullio Scovazzi and Gabriella Citroni, The Struggle Against Enforced Disappearance and the 2007 United Nations Convention (1st edn, Martinus Nijhoff Publishers 2007) 4.

[22] Declaration of Basic Principals of Justices for Victims and Abuse of Power on November 1985, Art 19

[23]International Convention for the Protection of All Persons from Enforced Disappearance 2010, Art 24

[24]Paranjape (n 20) 771.

[25]ibid.

[26] Declaration of Basic Principals of Justices for Victims and Abuse of Power on November 1985, Art 13

[27]Paranjape (n 20 )771.