Published in July 2018.
This module is a resource for lecturers
Another practice that can occur in the context of terrorism and counter-terrorism is enforced disappearances, which generally take the form of abduction and secret detention. The General Assembly has defined an enforced disappearance as when a person is:
[A]rrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or level of Government, or by organised groups or private individuals acting on behalf of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law. (Resolution 47/133).
Originally mandated to address the issue of enforced disappearances in South America, the United Nations Working Group on Enforced or Involuntary Disappearances now recognizes that enforced disappearance is a global problem, with it being most problematic in States suffering from internal conflict (Economic and Social Council, Commission on Human Rights report E/CN.4/2006/56). It has also paid particular attention to the unique disadvantages and obstacles that women face in exercising and enforcing their human rights, as a result of the roles that women and girls have in society, "which are deeply embedded in history, tradition, religion and culture" (Human Rights Council General Comment A/HRC/WGEID/98/2).
Such disappearances commonly result in further human rights violations, notably torture and death, violating not only the right to life, but also the right to liberty, the prohibition against torture, right to due process and remedy, and so forth. Whilst enforced disappearances may not always lead to death, the possibility of this and/or serious harm is high and therefore linked to the right to life. The United Nations Secretary-General has indicated concern over the use of enforced disappearances, as a mechanism that limits an accused's right of access to legal counsel, and the associated legal protections that this would afford (General Assembly report A/72/316, para. 39). The Secretary General proceeded to then echo the work of the Working Group on Involuntary Disappearances, by observing that a number of States are utilizing "high-handed security measures in places where the State is under the false and pernicious belief that they are a useful tool to preserve national security and combat terrorism and organised crime" (A/72/316, para. 39). Further reinforcing this position, the Special Rapporteur on the protection of human rights while countering terrorism since 2017, Fionnuala Ní Aoláin, has noted her concern regarding the application of human rights norms in the context of counter-terrorism (General Assembly report A/72/495, para. 26).
The positive obligation to protect the right to life extends to disappearances where even without evidence of abduction or detention by State agents - they may have been perpetrated by non-State terrorist actors - the State must fully investigate a disappearance. Indeed, States are expected to exercise due diligence, taking all reasonable steps appropriate to the specific context, to prevent such disappearances from occurring in the first place, and to expeditiously investigate their occurrences ( González et al. v Mexico, 2009, para. 248). Not doing so will be contrary to the right to life and other human rights violated in the circumstances. Similarly, if an individual has disappeared after an arrest and no substantive evidence exists suggesting that he or she was killed by the State concerned, then whilst the right to life may not have been violated by the State, the family of the disappeared individual is still entitled, under the right to life, to request an investigation into the disappearance.
Ideally, positive obligations to protect the right to life should be prescribed into law, which is the preferred approach of international human rights bodies in order to ensure greater certainty. To this end, clarity in the drafting of the applicable law is essential. This has been a particularly problematic issue in some countries, however, where the broad scope and ambiguity of some counter-terrorism laws have amplified the risk of violations to the right to life, together with the broader interpretation of a right to a dignified life free from torture, through the practice of enforced disappearances. (See e.g. United Arab Emirates Federal Law No. (7) of 2014 On Combating Terrorism Offences).