Competing Standards on the Definition of Enforced Disappearance - A victims-oriented perspective for national implementation

Abstract: There are competing standards regarding the definition of the crime of “enforced disappearance” under international law. When criminalizing enforced disappearance at the national level as part of their obligations under international law, States which adopt a more narrow definition of enforced disappearance provided in the Rome Statute require victims of enforced disappearance to prove the existence of an additional “special intention” of perpetrators. To create an additional evidential burden to victims by means of adopting a more narrow definition of the crime as opposed to a broader definition also provided under international law leads to a violation of due process rights of the victims by restricting their access to justice. Article 17 of the Rome Statute, regulates indicators of “unwillingness” of a State to investigate and prosecute crimes at the national level and sets out admissibility criteria for ICC prosecutions. It is, firstly, argued that, adopting the exact definition under the Rome Statute in the national criminal codes, is a legislative failure in protecting victims of enforced disappearance and an indication of ‘unwillingness’ to effectively investigate and prosecute crimes of enforced disappearance at the national level. It is part of States’ obligation under both international human rights law and international criminal law to adopt a victims-oriented perspective in codifying international crimes in their national codes. It is argued, secondly, that, the definition under the Rome Statute, and the additional elements of the crime thereof, should apply only to the prosecutions at the international level and not at the national level in order to widen the scope of protection for victims of enforced disappearance.