Human Rights Committee recognises Enforced Disappearances to be also violation of the right to be recognised as a person before the law

On 1 December, the Human Rights Committee recognised in its Communication Zohra Madoui vs. Algeria (Communication no. 1495/2006, Views of 1 December 2008, UN Doc. CCPR/C/94/D/1495/2006*) that the practice of enforced disappearances can lead to violation of the right to be recognised as a person before the law, contained in Article 16 of the International Covenant on Civil and Political Rights. The key passage is the following:

“7.7 As to the alleged violation of article 16 of the Covenant, the question arises as to whether and under what circumstances a forced disappearance may amount to denying the victim recognition as a person before the law. The Committee points out that intentionally removing a person from the protection of the law for a prolonged period of time may constitute a refusal to recognize that person before the law if the victim was in the hands of the State authorities when last seen and, at the same time, if the efforts of their relatives to obtain access to potentially effective remedies, including judicial remedies (Covenant, art. 2, para. 3) have been systematically impeded. In such situations, disappeared persons are in practice deprived of their capacity to exercise entitlements under law, including all their other rights under the Covenant, and of access to any possible remedy as a direct consequence of the actions of the State, which must be interpreted as a refusal to recognize such victims as persons before the law. The Committee notes that, under article 1, paragraph 2, of the Declaration on the Protection of All Persons from Enforced Disappearance,18 enforced disappearance constitutes a violation of the rules of international law guaranteeing, interalia, the right to recognition as a person before the law. It also recalls that article 7, paragraph 2 (i), of the Rome Statute of the International Criminal Court recognizes that the “intention of removing [persons] from the protection of the law for a prolonged period of time” is an essential element in the definition of enforced disappearance. Lastly, article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance mentions that enforced disappearance places the person concerned outside the protection of the law.
7.8 In the present case, the author says that her son was arrested along with three other people by plainclothes police on 7 May 1997. He was then allegedly taken to the operational command headquarters (PCO) and thence to the prison in Boufarik. There has been no news of him since that date. The Committee notes that the State party has failed to provide any satisfactory explanation concerning the author’s claim to have had no news of her son since 7 May 1997, and it appears not to have conducted a thorough investigation into the fate of the son or provided the author with any effective remedy. The Committee is of the view that if a person is arrested by the authorities and there is subsequently no news of that person’s fate, the authorities’ failure to provide information effectively places the disappeared person outside the protection of the law. Consequently, the Committee concludes that the facts before it in the present communication reveal a violation of article 16 of the Covenant.”

Moreover, although the Committee continued using the definition of enforced disappearances contained in the Rome Statute of the International Criminal Court, it made also important references to the UN Declaration on the Protection of All Persons from Enforced Disappearance and to the International Convention for the Protection of All Persons from Enforced Disappearance.

Other rights already recognised by the Committee to be able to be violated by the practice of Enforced Disappearance are the right to life (Article 6, ICCPR), the prohibition of torture and cruel, inhuman and degrading treatment (Article 7, ICCPR), the right not to be subject to arbitrary detention (Article 9, ICCPR), and the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person (Article 10, ICCPR). Moreover, Enforced Disappearances can lead to the violation by the State of the prohibition of torture and cruel, inhuman and degrading treatment (Article 7, ICCPR) towards the family members or the close people of the disappeared per.

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