Arbitrary Arrest and Enforced Disappearance under International Human Rights Law And Criminal Law

Introduction

Arbitrary arrest and enforced disappearance are two of the gravest human rights violations that exist under international law. They threaten the rule of law, violate fundamental rights, and serve to facilitate other serious human rights abuses like torture, extrajudicial execution and long-term, unlawful detention. In the past few decades, an extensive legal framework has been created under international law, in part to prohibit such acts and establish State obligations concerning their prevention, investigation, prosecution and remedy. The rights protected include the right to liberty, security and legal protection through instruments like the UDHR, the ICCPR, the Convention against Torture and the ICPPED, which place duties upon States. This article examines such a legal framework and the corresponding State obligations it creates, together with difficulties in ensuring State responsibility.

Individual liberty is among the oldest and most recognized principles of international human rights law; an inherent right of every individual to liberty, personal security and recognition before the law. Despite its prominence and the existence of established international standards prohibiting these acts, arbitrary arrest and enforced disappearance continue to occur in various regions worldwide, often during periods of political instability, conflict or with the use of terrorism and/or authoritative governance. An arrest is considered arbitrary if it has no legal basis or justification or fails to meet existing legal requirements, while an enforced disappearance requires secret detention with a refusal to acknowledge such detention or inform victims’ families or the public of victims’ whereabouts. The most significant consequence of these violations is the lack of access to justice and increased vulnerability of the victim to torture or ill treatment.

Accordingly, international human rights law places the onus on States to prevent any illegal deprivation of liberty, conduct investigations, prosecute those who commit the violation and provide effective remedies to the victims and their families, all of which will be explored in the context of this article.

The meaning of Arbitrary Arrest

An arbitrary arrest is a deprivation of liberty by state agents without any legal justification, or not in conformity with established legal procedure. An arrest can be considered arbitrary even if it is performed in accordance with domestic law if the law itself contradicts fundamental international human rights provisions or is applied in a disproportionate or discriminatory manner, for example, to punish the exercise of human rights.

International human rights bodies have stressed that legality is only one component of an arbitrary arrest: It should also be reasonable, non-discriminatory and necessary for the public interest. Arbitrary arrest therefore encompasses all forms of detention or restriction of movement based on political views, beliefs (religious or otherwise), or ethnicity. This also includes restriction of movements based on one’s exercise of such fundamental rights as freedom of association or expression.

The prohibition against arbitrary arrest is one of the earliest principles in international human rights law, appearing in Art 9 of the UDHR: “No one shall be subjected to arbitrary arrest, detention or exile.” Art 9 of the ICCPR expands upon this principle by affirming the right of every individual to liberty and security, ensuring any restriction of this right is exercised in accordance with legal procedures established by law, “The deprivation of liberty shall only be on such grounds and in accordance with such procedure as are established by law. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Similarly, the ICCPR also stipulates that an arrested individual be informed of the reasons for arrest, be brought promptly before a judge and have the opportunity to challenge the legality of his or her detention before a judicial tribunal. All of these procedures are vital to protecting individuals from arbitrary exercise of authority.

Enforced Disappearance and their Status as Grave Human Rights Violations

As simultaneously violating a number of human rights and international conventions, enforced disappearance ranks as one of the most serious violations under international law. It occurs whenever state agents, or those acting with the authority, complicity or direct involvement of the state, carry out arrest, detention, abduction or other deprivation of liberty, with subsequent refusal to disclose victims’ whereabouts or fate or acknowledgment of deprivation of liberty.

Unlike regular unlawful detention, an enforced disappearance implies the person concerned has been removed from the protection of the law altogether; typically locked up in secret locations and without access to legal or medical assistance. The result is the increased vulnerability of the individual to mistreatment. The Convention on Enforced Disappearance of 2006 establishes the first truly comprehensive international legal instrument addressing this violation. According to Art 1 of the convention, there shall be no circumstance that justifies enforced disappearance; this would include states of war or emergency or periods of public instability. The rationale for such a prohibition under international law is that it involves the violation of fundamental rights and compromises the integrity of the rule of law. Finally, it is worth noting that when such disappearances form part of a systematic attack on a population, this practice constitutes a crime against humanity and an individual can face criminal prosecution in their personal capacity and not just for State responsibility.

The Legal framework

There are a number of important international instruments that prohibit both arbitrary arrest and enforced disappearances and which together create a far-reaching legal framework for protecting human rights. The UDHR of 1948 is the foundational document in this area and protects, amongst other rights, the right to life, liberty and security of person (Art 3), freedom from torture (Art 5) and protection from arbitrary arrest and detention and fair trials (Art 9 and 10 respectively). The ICCPR transformed these ideals into legally binding commitments of States Parties, guaranteeing the right to liberty and security as outlined in the UDHR as well as other rights related to this principle. Its interpretation has expanded over the years by the UN Human Rights Committee. Additionally, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) has an indirect but nonetheless vital role given that victims of enforced disappearances often endure torture while detained.

State Obligations under International Human Rights Law

International human rights law establishes three fundamental categories of State obligations in relation to human rights: the obligation to respect, to protect, and to fulfill. As these duties are defined and apply to arbitrary arrest and enforced disappearance, States are obligated not merely to avoid committing such offenses but to take positive measures to prevent their occurrence and to provide for accountability. The obligation to respect mandates that State agents (including law enforcement officers, military officials and intelligence services) refrain from arbitrary arrests, secret detentions, and enforced disappearances. Any deprivation of liberty must be lawfully prescribed, effected by a competent authority and accompanied by a series of procedural safeguards.

The obligation to protect obliges States to prevent acts of illegal detention or enforced disappearance by non-State actors with the encouragement, approval, or tolerance of the State. Governments should have legal, institutional and training frameworks that prevent the commission of violations. To fulfill these rights, States should introduce criminal penalties for enforced disappearance, establish accessible complaint mechanisms, maintain accurate detention registers and ensure appropriate judicial control over detention conditions. Moreover, an individual who has disappeared and their relatives are entitled to an effective remedy. Specifically, under the International Convention for the Protection of All Persons from Enforced Disappearance, States parties are required to promptly and effectively investigate alleged violations, to prosecute all those responsible and to cooperate internationally to prevent enforced disappearances.

State Parties must ensure an effective investigation into all allegations of unlawful arrest or enforced disappearance promptly, impartially and effectively. If the investigation determines that a violation has been committed, those responsible must be brought to justice. The lack of an effective investigation will, itself, be a violation of international law.

Rights of Arrested and Detained Persons

A number of procedural guarantees were developed under international law, including those guaranteed under the ICCPR and codified in the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Under each of these instruments, an arrested person has the right to be informed immediately of the reasons for their arrest and the charges against them. He or she must be presented promptly to a judge, thereby enabling judicial review of the necessity and lawfulness of the arrest and detention. The provision for judicial review serves as a crucial safeguard against arbitrary detention.

The right to legal counsel is equally important and a detainee should have the right to communicate with their lawyer confidentially and to prepare their defence with his/her assistance. They should also be allowed to inform their relatives, or a person of their choice, of their detention and thus reduce the likelihood of detention incommunicado. Arrested persons have the right to challenge the lawfulness of their detention before a court; the remedy known as habeas corpus gives individuals the right to have their detention reviewed and to be released if it is unlawful. All persons in detention must be treated humanely and with respect for the inherent dignity of the human person; torture and cruel, inhuman or degrading treatment are absolutely prohibited and, therefore, have no exceptions.

 Rights of Victims and Their Families

Family members of disappeared persons endure the long period of uncertainty about the whereabouts of their loved ones, and the International Convention for the Protection of All Persons from Enforced Disappearance, among other sources, recognizes them as victims of enforced disappearance in their own right. Under the Convention, families have the right to know the truth about the circumstances of the enforced disappearance and its consequences, the results of the investigation, and the whereabouts of the disappeared person. States should preserve evidence relating to enforced disappearances and cooperate fully with the relevant authorities, including investigators. Victims and their relatives have the right to obtain redress, which includes restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

Medical and psychological rehabilitation of the victim, the provision of appropriate assistance to the victim and her/his family and the full public disclosure of the facts may be components of reparation, and public acknowledgement of responsibility as well as reforms of institutions and measures aimed at preventing the recurrence of enforced disappearances also play a significant role in reparation to relatives.

 International Jurisprudence

Several landmark cases before international courts and bodies have significantly shaped and clarified State obligations in relation to arbitrary arrest and enforced disappearance. The first of these, the decision of the Inter-American Court of Human Rights in Velsquez Rodrguez v. Honduras (1988), determined that States have positive and negative duties to respect and protect human rights, and consequently, have a responsibility to take reasonable steps to prevent forced disappearances, to investigate such violations, to prosecute offenders, and to make adequate reparations to victims. This decision marked a watershed moment for understanding the State’s responsibility for enforced disappearance. Similarly, in Kurt v. Turkey (1998), the European Court of Human Rights found that, in light of the authorities’ responsibility for the arrest of a missing person following detention, and failure to effectively investigate his whereabouts and the circumstances surrounding his detention, their actions violated article 5 of the ECHR. Thus, courts held that authorities could not simply disclaim responsibility on the grounds of not knowing of the detainee’s location.

Contemporary Challenges

The practice of arbitrary arrest and enforced disappearance remains a grave international concern that is enabled by various factors including political instability, internal armed conflict, counter-terrorism measures, emergency legislation, lack of robust legal frameworks and weak institutions to administer justice. The frequent resort by governments to legislation enacted to safeguard public order or counter terrorism is often used to justify prolonged detentions or secret confinements that, in many cases, run counter to the prohibitions on enforced disappearances and on torture. Notwithstanding, as the law dictates, certain rights such as freedom from torture or enforced disappearance are absolute and can never be derogated. The global phenomenon of enforced disappearance also persists due to an ongoing culture of impunity.

Investigations are slow and sometimes abandoned, evidence is hidden, witnesses are threatened or bribed, and those guilty are protected by legal loopholes or direct political influence. Therefore, it has become increasingly crucial to foster international cooperation for addressing violations of the Convention against Torture and other treaties. This cooperation takes many forms, including mutual legal assistance, mutual recognition of judicial decisions, extradition arrangements, as well as collaboration among national and international monitoring bodies and UN treaty mechanisms to improve adherence to the obligations that have been established under international law.

 Conclusion

Arbitrary arrest and enforced disappearance are criminal violations of fundamental human rights and freedoms; they threaten the right to liberty and security of person, the right not to be subjected to torture or cruel, inhuman or degrading treatment and the right to a fair trial. Through the UDHR, the ICCPR, the Convention against Torture, and, most importantly, the Convention against All Persons from Enforced Disappearance, the international community has created a solid framework to prohibit arbitrary arrests and enforced disappearances and has enshrined in it the corresponding State obligations: the State has positive duties to adopt laws that prevent such offenses and punish the perpetrators; to ensure appropriate oversight, especially in detention facilities; to launch investigations in case of complaints of enforced disappearance; and, ultimately, to make amends to the victims and their relatives. International case law supports these obligations by emphasizing that immunity is antithetical to human rights.

Albeit the standards for state responsibility and prevention of arbitrary arrests and enforced disappearances are well-established in the legal framework, its application has been less effective globally, which means that domestic law must be strengthened, judicial independence guaranteed, accountability ensured and transparent mechanisms for tracking of arrests should be established and widely disseminated.

References

1. Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A (III).
2. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.
3. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85.
4. International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entered into force 23 December 2010) 2716 UNTS 3.
5. United Nations Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of Person), UN Doc CCPR/C/GC/35 (2014).
6. United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, GA Res 43/173 (1988).
7. Velásquez Rodríguez v Honduras (Merits) Inter-American Court of Human Rights Series C No 4 (1988).
8. Kurt v Turkey (1998) 27 EHRR 373.
9. M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev edn, NP Engel 2005).
10. Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture: A Commentary (OUP 2008).