The fight against impunity : ensuring international accountability of perpetrators of enforced disappearance.

 

This session was dedicated to existing and emerging mechanisms at the international level for holding perpetrators of enforced disappearance accountable. Panelists explored the reasons why the crime of enforced disappearance remains widely unprosecuted and presented related recommendations. The contributions highlighted the need for legal harmonization and adequate legal frameworks as well as robust regional and international cooperation to prosecute enforced disappearance cases and provide justice and reparation to victims

The insightful presentations addressed the following themes: 

 • Persisting challenges to prosecution and investigation:Panelists examined challenges to ensuring accountability, including gathering and providing evidence for a crime that is secretive by nature, the lack of cooperation and political will from relevant State authorities, the fear of reprisals of investigating, prosecuting, and judicial authorities, their lack of awareness regarding the specificity of enforced disappearance and its complex nature, and difficulties in securing jurisdiction, including extraterritorial jurisdiction. 

• The need for legal frameworks that recognize enforced disappearance as an autonomous and continuing crime: Panelists reviewed existing legal frameworks at the national and international levels. In countries where enforced disappearance is not criminalized as an autonomous offence, using alternative offences prevents its prosecution as such as it does not take into account the specificity and complexity of the crime and affects the severity of penalties. Similarly, enforced disappearance should be considered a continuing crime, i.e. so long as the fate and the whereabouts of the person have not been clarified, to ensure that prosecution is not limited by statutes of limitation or de facto impunity, such as fear of reprisals or lack of independence and impartiality of the judiciary. 

• Coexisting definitions and approaches: international criminal law and international human rights law The definitions of enforced disappearance as provided by the Rome Statute of the International Criminal Court and by the International Convention for the Protection of All Persons from Enforced Disappearances differ on three elements: the intent of the author, the duration of the disappearance and the link with State agents. Both definitions can be found in the case law of hybrid and international tribunals and mechanisms. However, there is no agreement on a single, unified definition. Domestic tribunals are also confronted with the same issue.

 • The crucial role of victims and CSOs: Victim involvement and advocacy, including personal efforts by survivors and family members, is crucial in documenting cases and pushing for accountability. Victim-centred approaches have proved essential to achieving justice as their lived experiences inform the justice process. 

 • Successful cooperation: Creativity and adaptability are essential in designing legal frameworks for hybrid tribunals and international mechanisms. Building coalitions among victims, civil society, and States at the regional and at the international level enhances the chances of success in achieving accountability and justice regarding cases of enforced disappearance and other international crimes, such as the creation of hybrid and international tribunals.

Recommendations for action 

• Strengthening national legal and institutional frameworks - Enforced disappearance should be recognized as an autonomous and continuing crime, and its definition consistent across jurisdictions and tribunals - The possibility to exercise extraterritorial jurisdiction should be provided in domestic law - More resources should be allocated to prosecutorial units with jurisdiction over enforced disappearances and to NGOs that work to promote accountability - Training of prosecutors, judges and lawyers should be provided to enhance their awareness of the specificity of the crime of enforced disappearance 

• Guaranteeing victim engagement - Victims should be supported to allow them to bring their case to justice: legal support to document and build their case, psychological support, and financial and administrative support to access the country where proceedings take place - CSOs who support victims should also be supported 

• Promoting consistency across international standards; A collective reflexion is necessary on how to promote the relevant treaty provisions to achieve accountability in cases of enforced disappearance and how to promote consistency across international standards, for example regarding the definition of enforced disappearances in international criminal law and in international human rights law.

 • Fostering cooperation: Coalition amongst victims, civil society, and States at the regional and at the international level should be built and supported to promote the creation of international accountability mechanisms and the development, ratification and implementation of relevant standards, such as the CED Convention and the draft Convention on Prevention and Punishment of Crimes Against Humanity