THE INTERNATIONAL CONVENTION ON THE PROTECTION OF ALL PERSONS FROM ENFORCED

DISAPPEARANCES

A Research Paper

Submitted in Partial Fulfillment of the Requirements for Human Rights Law

Submitted by:

Alejo, Kim Santiago

Sacliwan, Iya Dongui-is

Tolledo, Ronald

Totaan-Musni, Alyssa

Submitted to:

Atty. Nestor Mondok

December 13, 2020

University of the Cordilleras, Baguio City

Ronald T. Tolledo

I. The Purpose of the Convention

The Convention for the Protection of All Person from Enforced Disappearance aims to

criminalize and combat the grave human violation of enforced disappearance. The

Convention was adopted by the UN General Assembly on December 20, 2006 and came

into force on December 23, 2010.1

Despite the promulgation of an Anti-Enforced Disappearance Law, the Philippines is not

yet a state party nor a signatory to the CPED, the only remaining core treaty that the

Philippines has not ratified.2

The Philippines, however, as stated above, passed the landmark Anti-Enforced or

Involuntary Disappearance Act in December 20123, making it the first country in Asia to

criminalize the practice of enforced and involuntary disappearances. According to latest

data from the Philippines’ Families of Victims of Involuntary Disappearance (FIND),

there are at least 1,996 documented cases of enforced disappearance in the Philippines

since the administration of Ferdinand Marcos. Out of this number, 1,165 are still missing

while 587 have surfaced alive and 244 were found dead.4

1
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-16&chapter=4&lang=en&clang=_en,
accessed December 2, 2020
2
https://www.upr-info.org/sites/default/files/document/philippines/session_27_-
_may_2017/js1_upr27_phl_e_main.pdf, accessed December 2, 2020
3
RA 10353, see https://www.officialgazette.gov.ph/2012/12/21/republic-act-no-10353/
4
https://theaseanpost.com/article/disappearing-philippines, accessed December 2, 2020
II. The Definition of Enforced Disappearance

The Convention defined "enforced disappearance" as 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. 5

Based on the foregoing definition, Petralba states that the crime of enforced disappearance has

two components6:

1. The abduction of a person by State authorities or State-sanctioned persons;

2. The denial or the concealment of the whereabouts of the missing person.

The Working Group on Enforced or Involuntary disappearances (WGEID) has identified the

elements which characterize enforced disappearance and that should be contained in the

definition of the crime of enforced disappearance: “Deprivation of liberty against the will of the

person concerned, b) Involvement of governmental officials, at least indirectly by acquiescence;

c) Refusal to disclose the fate and whereabouts of the person concerned”. 7

5
Article 2, International Convention for the Protection of All Persons from Enforced Disappearance, see
https://www.ohchr.org/en/hrbodies/ced/pages/conventionced.aspx, accessed December 2, 2020.
6
Pepita Jane Petralba, Hornbook on International and Philippine Human Rights Law, p. 131
7
“General Comments of the Declaration on the Protection of All Persons from Enforced Disappearance of 15
January 1996”, in Report of the Working Group on Enforced or Involuntary Disappearances, see
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G96/102/18/PDF/G9610218.pdf?OpenElement, accessed
December 2, 2020.
 Likewise, the WGEID has stated that “the criminal offence in question [enforced disappearance]

starts with an arrest, detention or abduction against the will of the victim, which means that the

enforced disappearance may be initiated by an illegal detention or by an initially legal arrest or

detention. That is to say, the protection of a victim from enforced disappearance must be

effective upon the act of deprivation of liberty, whatever form such deprivation of liberty takes,

and not be limited to cases of illegitimate deprivations of liberty.” 8

The Convention considers "enforced disappearance" as any form of deprivation of liberty, which

is carried out by agents or with the authorization of a state, followed by a refusal to

acknowledge the deprivation of liberty and the whereabouts of the person concerned.

A typical example of enforced or involuntary disappearance can be broadly described as follows:

a clearly identified person is detained against his or her will by officials of any branch or level of

government or by organized groups or private individuals allegedly acting on behalf of or with

the support, permission or acquiescence of the Government. These forces then conceal the

whereabouts of that person or refuse to disclose his fate or acknowledge that the person was

detained.9

III. The Extreme Seriousness of Enforced disappearance.

The enforced disappearance of people is one of the most odious violations of human rights. The

disappeared are stripped of all their rights and placed, defenseless, at the mercy of their
8
“General Comment on the definition on Enforced Disappearances”, para. 7, in Report of the Working Group on
Enforced or Involuntary Disappearances, see https://documents-dds-
ny.un.org/doc/UNDOC/GEN/G08/101/05/PDF/G0810105.pdf?OpenElement, accessed December 2, 2020.
9
Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. E/CN.4/1988/19, par. 17.
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G88/100/15/PDF/G8810015.pdf?OpenElement, accessed
December 2, 2020
 victimizers, with no legal protection. Its practice causes profound suffering to the family

members and friends of the disappeared: the never-ending wait for their return and the total

uncertainty of what really happened to them and their location constantly torments their

parents, partners and children. It is considered a crime under international law, and, therefore,

state authorities have the duty to investigate, prosecute and punish the perpetrators and other

participants.

In certain circumstances defined in international law 10, enforced disappearance is a crime

against humanity. Enforced disappearance constitutes a crime against humanity when

committed as part of a widespread or systematic attack directed against any civilian population,

with knowledge of the attack.11

The Commission stated that “this procedure is cruel and inhuman. As experience shows, a

‘disappearance’ not only constitutes an arbitrary deprivation of freedom but also represents

serious danger to the personal integrity, safety and life of the victim. It is, moreover, a true form

of torture for family and friends, owing to the uncertainty about their fate and the impossibility

of providing them with legal, moral and material assistance.”

Enforced disappearance, considered both as a criminal offense as well as a serious violation of

human rights, is a complex crime, which involves the cumulative presence of two behaviors: the
10
Article 5, International Convention for the Protection of All Persons from Enforced Disappearance. Rome Statute
of the International Criminal Court, Art. 7(1). Note that even one case of enforced disappearance would suffice to
constitute a crime against humanity if it is committed as a part of the widespread or systematic attack on civilian
population.

11
The first historically documented instance of this systematic attack was initiated by the Nazi’s with the infamous
“Night and Fog” decree of Hitler where the members of the National Resistance Movement were transported and
vanished without a trace and no information whatsoever were given as to their whereabouts and fate. See
https://www.britannica.com/topic/Night-and-Fog-Decree, accessed December 2, 2020
 deprivation of liberty by state agents or individuals acting with the authorization, support or

acquiescence of the state; and the refusal to acknowledge the deprivation of liberty of the

deprivation of liberty or the concealment of the fate or whereabouts of the disappeared person.

As such, the Convention stated that enforced disappearance shall never be allowed, even under

exceptional circumstances such as war or threat thereof, internal political stability or public

emergency.12

In other words, the right not to be subjected to enforced disappearance is non-derogable.

IV. The Duties of the States

States parties to the International Convention for the Protection of All Persons from Enforced

Disappearance (CED) are obliged to prevent, prohibit and criminalize enforced disappearance.

Under the Convention, states parties must inter alia:

A. Criminalize enforced disappearances under all circumstances and without exception.

Under the Convention, the persons who can be held liable for enforced disappearance are:

i. Those directly responsible for committing it; or

ii. A superior who:

- Knew or disregarded information that his subordinates were committing or

about to commit it;

12
Article 1, International Convention for the Protection of All Persons from Enforced Disappearance.
 - Exercised responsibility over activities concerned wit the crime of enforced

disappearance;

- Failed to take measures to prevent the commission thereof. 13

The Convention further provides that the subordinate cannot invoke the defense of acting under

a superior order to escape his liability in committing the crime of enforced disappearance. 14

In making enforced disappearance a serious criminal offense, the State may establish mitigating

circumstances in instances where the accused contributes to bringing the disappeared person

alive or helps clarify cases of enforced disappearances or identifies the perpetrators of enforced

disappearances.15

B. Investigate enforced disappearance

Criminalization of enforced disappearance presupposes investigation procedure. The

Convention provides two modes for initiating investigation of enforced disappearance –

individual complaint to competent authorities and initiation motu proprio by the competent

authorities.

In the first case, there is an obligation of authorities to examine allegation and “where

necessary, undertake without delay a thorough and impartial investigation.” 16

13
Article 6, International Convention for the Protection of All Persons from Enforced Disappearance.
14
Ibid.
15
Article 7, International Convention for the Protection of All Persons from Enforced Disappearance.
16
Article 12 (1) of the Convention
 In the second case, if there are reasonable grounds for believing that a person has been

subjected to enforced disappearance” authorities are obliged to investigate a case even if

there is no formal complaint.17

To put these provisions into effect, the Convention obliges State Parties to ensure conditions

which will allow investigation of the enforced disappearance. States must take necessary

measures to prevent ill-treatment and intimidation of persons involved in investigation

(complainant, witnesses, relatives of the disappeared person, defense counsel, persons

conducting an investigation)18, provide access to documentation and relevant information 19

or places of detention20 and to prevent persons suspected of committing a crime to

influence or hinder investigation.21

C. Prevent Enforced Disappearance

In order to prevent the crime of enforced disappearance, the Convention obligates the State

Parties to enact measures that would serve as safeguards with regard to deprivation of

liberty. This is because the crime of enforced disappearance can begin by a lawful arrest and

detention but because of the refusal to disclose information by the State, the arrest

becomes the criminal act of enforced disappearance.

First, the State parties are required to regulate conditions and authorities for giving orders

of deprivation of liberty.22 Second, they are required to guarantee that persons deprived of

liberty are held in officially recognized and supervised detention facilities and have a right to
17
Article 12 (2) of the Convention.
18
Article 12 (1) of the Convention.
19
Article 12 (3a) of the Convention.
20
Article 12 (3b) of the Convention.
21
Article 12 (4) of the Convention.
22
Article 17(2)(a) and (b) of the Convention.
 communicate with and be visited by family, legal counsel, or any person of his or her

choice.23 Third, they are required to guarantee that any person with legitimate interest shall

be entitled to initiate proceedings before the court on examination of the lawfulness of the

deprivation.24 Fourth, the State parties are required to establish and maintain records on the

persons deprived of liberty which shall contain information about the identity of deprived

person, date, time and place of deprivation and authority which conducted deprivation

etc.25 In case of release, the State parties shall take necessary measures to ensure reliable

verification of release and to assure physical integrity of such persons and their right to

exercise fully their rights in time of release without prejudice to any obligation they may be

subjected under national law.26

Another measure to prevent enforced disappearance is education, training and information

on the relevant provisions of the Convention.27 This provision specifically targets law

enforcement agents, military personnel and public officials. The idea is that they might be

restrained from committing the criminal act of enforced disappearance if they know that the

same is penalized with a heavy penalty.

D. Provide reparations and information concerning the fate of the victim.

A victim of enforced disappearance has a right to obtain reparation and prompt, fair and

adequate compensation.28 The right to obtain reparation covers material and moral

23
Article 17(2)(c) (d) and (e) of the Convention.
24
Article 17(2)(f) of the Convention.
25
Article 17(3) of the Convention.
26
Article 21 of the Convention.
27
Article 23(1) of the Convention.
28
Article 24(4) and (5) of the Convention.
damages. Thus, the meaning of reparation here is not confined to monetary compensation

given the effects of enforced disappearance on the victim’s person including their families.

The non-monetary compensation may include legal and medical assistance as well as

psychological help to victims of enforced disappearance and their families.

The Convention enumerates in non-exhausting list possible forms or reparation (restitution,

rehabilitation, satisfaction, including the restoration of the dignity and reputation, and

guarantee of non-repetition).