Vesna Stefanovska, PhD, Legal researcher in the Institute for Human Rights
On 4 August 2021, the UN Working Group on Enforced or Involuntary Disappearances (WGEID) published its annual report. During the reporting period, the WGEID transmitted 651 new cases of enforced disappearances to 30 countries. The most concerning statistics refer to the fact that since its inception, the WGEID has transmitted a total of 59.212 cases to 110 States. The number of cases under active consideration that have not yet been clarified, closed or discontinued stands at 46.490 in 95 States.
A special section of this report was devoted to enforced disappearances in the context of transnational transfers. Recently WGEID documented several cases in which States resorted to extraterritorial transfers that led to enforced disappearances with the participation, support or acquiescence of other State, in an attempt to capture their nationals or third country nationals, often as part of purported counterterrorism operations. WGEID managed to determine that in almost all the instances reported, the arrests seem to have been carried out without any legal basis; no arrest warrants and no explanations were provided. The persons were taken by force and in some cases they were blindfolded, hooded and handcuffed.
Extraterritorial abductions in light of the previous WGEID reports
Global trend of deteriorating human rights was underlined by a number of worrisome developments in the area of enforced disappearances. The increasing use of extraterritorial abductions by a number of states, the adoption of regressive legislation and measures in the area of truth, justice and reparations are only few examples with which the world is facing in the current climate.
In many cases where extraterritorial abductions and torture were committed, States used the justification of ‘secret state privileges’ which allows the governments to withhold information in cases when disclosure would harm their national security or diplomatic relations.
Undoubtedly, extraterritorial abductions represent a form of enforced disappearance; as they contain several elements of the definition of the crime such as: (a) deprivation of liberty, (b) support or acquiescence of a state agents and (c) refusal to acknowledge that deprivation of liberty.
The Joint Study on global practices in relation to secret detention in the context of countering terrorism emphasized that secret detention violates the right to personal liberty and the prohibition of arbitrary arrest or detention. No jurisdiction should allow for individuals to be deprived of their liberty in secret for potentially indefinite periods, held outside the reach of the law, without the possibility of resorting to legal procedures, including habeas corpus. Secret detainees are typically deprived of their right to a fair trial when State authorities do not intend to charge or try them. Even if detainees are criminally charged, the secrecy and insecurity caused by the denial of contact to the outside world and the fact that family members have no knowledge of their whereabouts and fate violate the presumption of innocence and are conducive to confessions obtained under torture or other forms of ill-treatment. At the same time, secret detention amounts to an enforced disappearance. If resorted to in a widespread or systematic manner, secret detention may even reach the threshold of a crime against humanity.
Every instance of secret detention is by definition incommunicadodetention. Prolonged incommunicado detention may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment, and may in itself constitute such treatment. The suffering caused to family members of a secretly detained (namely, disappeared) person may also amount to torture or other form of ill-treatment, and at the same time violates the right to the protection of family life.
The consequences of extraterritorial abductions, secret renditions and other forms of enforced disappearances are tremendous and they affect not only the disappeared person, but also his family and the society as a whole. In most of the cases, the sequel includes: (a) psychological sufferings accompanied with torture or other forms of ill-treatment; (b) denying the access to justice and right to the truth; (c) impunity and lack of accountability and (d) lack of effective investigation.
Impunity as a major concern in cases of enforced disappearances
Impunity is perhaps the most significant factor contributing to the phenomenon of enforced disappearances.
Failure to investigate effectively might lead to a situation of grave impunity, besides being injurious to victims, their next of kin and society as a whole. A number of states are also increasingly justifying the use of enforced disappearances under the pretext of combating terrorism, including the adoption of legal provisions that facilitate the occurrence of enforced disappearances and incommunicado detention. In its latest report, WGEID observes that in most cases, no effective investigation has been conducted and no one has been held accountable for the reported human rights violations. In response to these allegations, the authorities have either denied that the operations took place or maintained that they were necessary, legal and proportionate to the need to neutralize an imminent threat to national security.
Several measures should be undertaken in order to prevent extraterritorial transfers in future. States should take serious legislation changes in order to prevent impunity and to assure accountability for acts which include enforced disappearance. Further, States should cease justifying enforced disappearances on the grounds of national security, combating terrorism or behind the vail of ‘secret state privilege’. Finally, States should conduct serious investigations in order to clarify cases of enforced disappearances by state agents, to acknowledge these acts and to sanction them in accordance to the laws.
Unfortunately, the current cases of enforced disappearance in context of transnational transfers are an indicator that the States are not willing to undertake none of the above mentioned measures. Sadly, the cases elaborated by the WGEID as well as the jurisprudence of the Inter-American Court of Human Rights and the European Court of Human Rights demonstrate that the commitments of States are not supported by acts. The practice of extraterritorial abductions remains active and legitimate behind the vail of ‘war on terror’ and secret state privileges.