Enforced disappearance as a crime against humanity

Enforced disappearance can be classified as a crime against humanity.

Crimes against humanity are a set of criminal offences that are recognised as contravening internationally defined human rights.

What is enforced disappearance?

Enforced disappearance is defined as the arrest, detainment or abduction of one or more persons.

To be classified as a crime against humanity, there are certain factors that need to be present when the crime is committed, and these include:

  • The knowledge or involvement of the government of a country, or a political organisation.
  • The removal of the person from the protection of the law for a significant amount of time.
  • The crime forms part of a widespread attack against a certain population of civilians.
  • The perpetrator or organisation refuses to acknowledge the deprivation of freedom, or whereabouts of the person or persons.
  • This refusal has the support or acquiescence of the government or political organisation involved.

According to the International Criminal Court, there are a number of other crimes against humanity, including:

  • Imprisonment under certain conditions, or other forms of severe deprivation of physical liberty, if undertaken in violation of international law.
  • Torture.
  • Rape, sexual slavery, enforced prostitution or other sexual offences, or sexual violence.
  • Slavery.
  • Deportation, or forced transfer of a population.
  • Murder.
  • Apartheid.
  • Extermination.
  • Persecution of an identifiable group on the basis of their identity, religion, culture, gender or ethnic background.
  • Other acts which are done intentionally, and might occasion injury or suffering to physical or mental health.

Crimes against humanity are differentiated from other crimes by being perpetrated on a widespread scale by a government or political organisation against a civilian population.

A single individual working alone without the knowledge or support of a political organisation or government might be committing a crime, but this does not qualify as committing a crime against humanity.

If the enforced disappearance was not part of a systematic or widespread practice supported by a political party or government, it can be considered a human rights violation or war crime, rather than a crime against humanity.

According to the United Nations, enforced disappearance is not restricted to certain parts of the world, but is an ongoing issue around the globe.

It is often used by dictatorships as a means to create fear amongst the population, and to suppress political opponents.

The UN adopted the International Convention for the Protection of All Persons from Enforced Disappearance in 2010, and declared an International Day of the Victims of Enforced Disappearances to be held annually on August 30.

In spite of the fact that enforced disappearance is a crime under international law; the perpetrators often escape justice, according to an article by Amnesty International.

In the article, Amnesty calls for governments around the world to join the treaty, and states that is has documented cases of enforced disappearance in many countries, including Algeria, the Americas, the Balkans, Indonesia, Libya, Mauritania, Mali, Pakistan, Russia and Sri Lanka.

Some countries, such as the USA, Canada and Australia, have domestic legislation covering crimes against humanity. In Australia, enforced disappearance as a crime against humanity is prosecuted according to Section 268.21 of the Criminal Code Act 1995.

Crimes against humanity, including enforced disappearance, are Commonwealth offences, and are tried in the supreme court, rather than the local or district courts.

If a perpetrator is found guilty, long-term imprisonment is likely.

The average penalty for an enforced disappearance conviction in Australia is 17 years imprisonment.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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