THE ICCPED

Type United Nations General Assembly Resolutio n 29 June 2006 20 December 2006

Drafted Signed

Location
Effective Condition Signatorie s Parties

Paris
23 December 2010 32 ratifications 91 37

A CRIME AGAINST HUMANITY

Under the Rome Statute of the International Criminal Court (Art. 7), enforced disappearance has been declared a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Enforced disappearance is defined as the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period.

OTHER DECLARATIONS
NUREMBERG The modern notion of a crime against humanity was developed during the International Military Tribunal trials in Nuremberg. Crimes against humanity were defined as murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecution on political, racial or religious grounds

UN ENFORCED DISAPPERANCE DECLARATION The UN General Assembly proclaimed in the Enforced Disappearance Declaration that the systematic practice of enforced disappearance is of the nature of a crime against humanity.

ORGANIZATION OF AMERICAN STATES Likewise, the OAS Convention contains a statement, in its preamble, that the systematic practice of the forced disappearance of persons constitutes a crime against humanity.

THE ROME STATUTE DIFFERENCE

The Rome Statute appears to diverge from this customary trend by extending its definition to include non-state actors that is, persons acting with the authorization, support or acquiescence of non-state political organizations. This represents a departure from the position under the Enforced Disappearance

Declaration and the OAS Convention, both of which limit the definition of enforced disappearance to an act committed by state-supported actors.

LEGAL CONSEQUENCES IN THE ICC

Where an act of enforced disappearance is found to amount to a crime against humanity pursuant to the Rome Statute, an individual may be held criminally responsible under the international jurisdiction of the ICC.

BUT
The act for which an individual is to be charged must have either occurred in the territory of a state party to the Rome Statute, or the individual must be a national of a state party. However, the ICC is not a court of primary jurisdiction; it functions to complement existing domestic jurisdictions.

LEGAL CONSEQUENCES IN THE ICC

In order to prosecute an individual under its jurisdiction, the ICC must be satisfied that a state with domestic jurisdiction over the act is unwilling or unable genuinely to carry out the investigation or prosecution. Further, the Courts jurisdiction can only be initiated either at the instigation of an ICC prosecutor (through a request by a state party93 or at the prosecutors own initiative94) or on referral by the Security Council under Chapter VII of the Charter of the United Nations.

SOME GAPS IN CRIMINALIZATION

An act of enforced disappearance is clearly criminalised where it reaches the level, and satisfies the specific elements, of a crime against humanity. Whether criminal responsibility attaches to isolated or per se acts of enforced disappearance is less clear. It is likely that only in certain circumstances will individual acts of enforced disappearance satisfy the threshold requirements of torture pursuant to the CAT