No impuNity for eNforced disappearaNces - Amnesty International

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8No Impunity for Enforced DisappearancesChecklist for effective implementation of the International Convention for the Protection of All Persons from EnforcedDisappearancedefinition under international law. Article 7 of the Rome Statute of the ICC provides that anenforced disappearance is committed as part of a widespread or systematic attack on acivilian population. Thus, a single enforced disappearance can be a crime against humanityunder Article 7 as long as it is part of a widespread or systematic attack, which could involvea wide range of other acts listed in that article that can amount to crimes against humanitywhen committed as part of a widespread or systematic attack against civilian population.This is an important distinction and states parties, in fulfilling all of their obligations under Article 5,must define enforced disappearance as a crime against humanity in accordance with applicableinternational law, when it is committed as part of a widespread or systematic attack on a civilianpopulation, not simply the widespread or systematic practice of enforced disappearance.Ensuring that enforced disappearance attracts the consequences provided under international law. Thesecond component of Article 5 provides that the widespread or systematic practice ofenforced disappearance “shall attract the consequences provided for under such applicableinternational law”. These consequences include the non-applicability of statutory limitations(see discussion of Article 8), the prohibition of amnesties (see discussion in Section 7.2) andthe recognition of the right of victims to full reparation (see discussion of Article 24 (4 to 6).In addition, these consequences include penalties that reflect the serious nature of the crime(see discussion of Article 7), but also a maximum sentence that does not exceed lifeimprisonment and excludes the death penalty. Life imprisonment is the maximum penaltyprovided for this crime under the Rome Statute and the statutes of other international andinternationalized 19 criminal courts, including the International Criminal Tribunal for theformer Yugoslavia; the International Criminal Tribunal for Rwanda; the Special Panels forSerious Crimes in Dili, Timor-Leste; the international panels in Kosovo; the Special Court forSierra Leone; the War Crimes Chamber of the State Court of Bosnia and Herzegovina,; andthe Extraordinary Chambers in the Courts of Cambodia. . 2019Internationalized criminal courts are courts that hybridize national and international systems. Thesesort of courts have been established to investigate crimes under international law in the country wherethey have been committed. No standard model of internationalized courts has been established and eachof those created have been unique.20Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute), art. 24(http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf); Statute for the InternationalTribunal for Rwanda (ICTR Statute), art. 23 (http://www.un.org/ictr/statute.html); UNTAET Regulation2000/15 (establishing the Special Panels for Serious Crimes, Dili, East Timor), 6 June 2000, Sect. 10(http://www.un.org/en/peacekeeping/missions/past/etimor/untaetR/Reg0015E.pdf); Statute of the SpecialCourt for Sierra Leone (Sierra Leone Statute), art. 19 (http://www.scsl.org/LinkClick.aspx?fileticket=uClnd1MJeEw%3D&);Cambodian Law on the Establishment of theExtraordinary Chambers, with inclusion of amendments as promulgated on 27 Oct. 2004(NS/RKM/1004/006) (Cambodian Extraordinary Chambers Law), art. 38(http://www.cambodiatribunal.org/sites/default/files/resources/Domestic_Cambodian_Law_as_amended_27_Oct_2004_Eng.pdf).Amnesty International November 2011 Index: IOR 51/006/2011
No impunity for enforced disappearancesChecklist for effective implementation of the International Convention for the Protection of All Persons from EnforcedDisappearance9Therefore, states parties must ensure that they exclude statutes of limitation for the crime ofenforced disappearance, prohibit amnesties for enforced disappearance, recognize the right ofvictims to full reparation for this crime and exclude the death penalty for this crime.3. PRINCIPLES OF CRIMINAL RESPONSIBILITYAs the Working Group has stated, states parties must establish a comprehensive regime ofindividual responsibility in relation to enforced disappearances, including superiorresponsibility. 21 States parties must ensure that they incorporate principles of criminalresponsibility according to their international obligations under customary international law.Article 61. Each State Party shall take the necessary measures to hold criminally responsible at least:(a) Any person who commits, orders, solicits or induces the commission of, attempts to commit, is anaccomplice to or participates in an enforced disappearance;Article 6 (1) (a) of the Convention requires states parties, at a minimum, to take thenecessary measures to hold criminally responsible persons who are involved in an enforceddisappearance in accordance with five principles of criminal responsibility: “Any person whocommits, orders, solicits or induces the commission of, attempts to commit, is an accompliceto or participates in an enforced disappearance”. This should include attempting, assisting,facilitating or aiding or abetting the commission of the crime of enforced disappearances, 22as well as planning or conspiring and instigating or inciting. 23However, the Working Group has declared that states must also hold persons involved in anenforced disappearance on the following grounds: Complicity, instigation, consent,acquiescence and active concealment. 24 In addition, other principles of criminalresponsibility applicable to the crime against humanity of enforced disappearance arerecognized in Article 25 of the Rome Statute.212010 Working Group Report, para. 62 (f).22International Committee of the Red Cross, The Domestic Implementation of InternationalHumanitarian Law, p. 35 (http://www.icrc.org/eng/assets/files/publications/icrc-002-4028.pdf).23ICTY Statute, art. 7 and ICTR Statute, art. 6.242010 Working Group Report, supra note 11, para. 25.Index: IOR 51/006/2011 Amnesty International November 2011
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No impuNity for eNforceddisappearaN
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No impuNity for eNforced disappearaNces - Amnesty International

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