Current debates, developments and challenges regarding torture, enforced disappearances and human rights

Authors

  • Pau Perez-Sales
  • Bernard Duhaime
  • Juan Méndez

DOI:

https://doi.org/10.7146/torture.v31i2.128890

Keywords:

enforced disappearances, torture

Abstract

There are, thus, three essential distinguishing features: intentionality, purpose and severity of suffering. Torture can be broadly defined as the intentional infliction of severe pain or suffering, by agents of the State, for a specific purpose, such as the extraction of information, a confession, intimidation or punishment or discrimination[1]. Other relevant elements not provided in the legal definition include the suppression of the will of the victim, powerlessness and the moral injury suffered, and the attack on dignity as an essential human value. Similarly, enforced disappearance (ED) is, also broadly defined, the deprivation of liberty by agents of the State followed by the refusal to acknowledge the fate or whereabouts of the detainee, this putting the person outside the protection of the law[2].

 

ED is a composite human rights violation that involves two kinds of victims: first, the direct victim, who suffered the violence of abduction, the anguish of being held defenceless in an unknown place and who, in most cases, suffered physical or psychological torture, and, on the other hand, the relatives of the disappeared[3]. The level of anguish and suffering inflicted on family members has been repeatedly considered by the medical and psychological community to be of sufficient severity to meet the threshold of the definition of torture (Citroni, 2017; Hollander, 2016; Kordon, D., Edelman, L., Lagos, D., & Kersner, 1998; Pérez-Sales, 2000; Robins, 2010; Shaery-Yazdi, 2020; Smid et al., 2020; Zarrugh, 2018).

 

There are strong arguments to consider that ED is a form of torture. Indeed, EDs always imply, towards the person disappeared, intentionality, purpose, suffering, powerlessness, absolute deprivation of will and attacks to dignity. At the same time, some of these elements may be more complex to prove in the case of relatives. One should recall, for example, that the German High Command, while implementing the sadly famous Night and Fog Decree, which instituted a program to enforcedly disappear victims in the occupied territories during World War II, expressly indicated that "[e]fficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal. This aim is achieved when the criminal is transferred to Germany" (Finucane, 2010).

 

This paper explores these links (see also Nowack, 2012) and puts forward some proposals and challenges for the future.

 

[1] In accordance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, “the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions” (article 1.1).

[2] Enforced disappearances are defined as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”.  See International Convention for the Protection of All Persons from Enforced Disappearance, article 2.

[3]Indeed, the ED Convention, provides that the term ’victim’ means the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance”. In this sense, and as victims often recall, there are (a) the rights of the disappeared, including the right to due process, to liberty, security and integrity of the person, to be searched, reparation, etc. (b) the rights of the relatives to truth and justice, to measures of psycho-social assistance and other forms of reparation, etc.

Author Biographies

Bernard Duhaime

Professor of Law at the Faculté de science
politique et de droit, Universté du Québec à
Montréal (Canada) and a former Member of the
United Nations Working Group on Enforced or
Involuntary Disappearances.

Juan Méndez

American University. Washington College of Law
(United States) and former Special Rapporteur
on Torture.

References

References

African Union, African Commission on Human and Peoples’ Rights, Mouvement Burkinabé des Droits de l’Homme et des Peuples vs. Burkina Faso, Comm. No. 204/97 (2001); Resolution ACHPR/RES.79 (XXXVIII) 05

Arnoso, M. (2010). Terrorismo de Estado en Jujuy (Argentina, 1976-1983): trauma sociopolítico y representaciones del pasado y la justicia en presos políticos y familiares de desaparecidos. In Departamento de Ciencias Politicas. Universidad del Pais Vasco.

Citroni, G. (2017). The first attempts in Mexico and Central America to address the phenomenon of missing and disappeared migrants. 99, 735–757. https://doi.org/10.1017/S1816383118000346

Dalgaard, N. T., Diab, S. Y., Montgomery, E., Qouta, S. R., & Punamäki, R. L. (2019). Is silence about trauma harmful for children? Transgenerational communication in Palestinian families. Transcultural Psychiatry, 0(0), 1–30. https://doi.org/10.1177/1363461518824430

EATIP, GTNM/RJ, CINTRAS, & SERSOC. (2002). Paisajes del Dolor, Senderos de esperanza. Salud mental y derechos humanos en el Cono Sur.

Hollander, T. (2016). Ambiguous Loss and Complicated Grief: Understanding the Grief of Parents of the Disappeared in Northern Uganda. Journal of Family Theory and Review, 8(3), 294–307. https://doi.org/10.1111/jftr.12153

Kaplan, S. (2013). Child Survivors of the 1994 Rwandan Genocide and Trauma-Related Affect. Journal of Social Issues, 69, 92–110. https://doi.org/10.1111/josi.12005

Kordon, D., Edelman, L., Lagos, D., & Kersner, D. (1998). Forced disappearance: A particular form of torture. In Jaranson JM & P. MK (Eds.), Caring for victims of torture (pp. 203–227). American Psychiatric Association.

Lenferink, L. I. M., de Keijser, J., Wessel, I., de Vries, D., & Boelen, P. A. (2019). Toward a Better Understanding of Psychological Symptoms in People Confronted With the Disappearance of a Loved One: A Systematic Review. Trauma, Violence, and Abuse, 20(3), 287–302. https://doi.org/10.1177/1524838017699602

Pedersen, D., Kienzler, H., & Gamarra, J. (2010). Llaki and Ñakary: Idioms of Distress and Suffering Among the Highland Quechua in the Peruvian Andes. Culture, Medicine, and Psychiatry, 34(2), 279–300. https://doi.org/10.1007/s11013-010-9173-z

Pérez-Sales, P. (2000). Long-term psychosocial consequences in first-degree relatives of people detained-disappeared or executed for political reasons in Chile: A study of Mapuce and non-Mapuce persons. Psicothema, 12, 109–116. http://search.ebscohost.com/login.aspx?direct=true&db=psyh&AN=2000-07693-011

Phillips, E. M. (2011). Pain, Suffering, and Humiliation: The Systemisation of Violence in Kidnapping for Ransom. Journal of Aggression, Maltreatment & Trauma, 20(8), 845–869. https://doi.org/10.1080/10926771.2011.626512

Robins, S. (2010). Ambiguous Loss in a Non-Western Context: Families of the Disappeared in Postconflict Nepal. Family Relations, 59(3), 253–268. https://doi.org/10.1111/j.1741-3729.2010.00600.x

Shaery-Yazdi, R. (2020). Search and sovereignty: the relatives of the Lebanese disappeared in Syria. British Journal of Middle Eastern Studies, 00(00), 1–17. https://doi.org/10.1080/13530194.2020.1743643

Smid, G., Blaauw, M., & Lenferink, L. (2020). Relatives of Enforced Disappeared Persons in Mexico: Identifying Mental Health and Psychosocial Support Needs and Exploring Barriers to Care. Intervention, 18(2), 139–149. https://doi.org/10.4103/INTV.INTV_55_19

Zarrugh, A. (2018). 'You Exile them in their Own Countries': The Everyday Politics of Reclaiming the Disappeared in Libya. Middle East Critique, 27(3), 247–259. https://doi.org/10.1080/19436149.2018.1475855

Downloads

Published

2021-12-29

How to Cite

Perez-Sales, P., Duhaime, B., & Méndez, J. (2021). Current debates, developments and challenges regarding torture, enforced disappearances and human rights. Torture Journal, 31(2), 3–13. https://doi.org/10.7146/torture.v31i2.128890