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

Resumen

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.