Improving prosecution of enforced disappearances: challenges and solutions
Following the first ever World Congress on Enforced Disappearances that took place in Geneva on the 15th and 16th of January 2025, the Geneva Human Rights Platform of the Academy of International Humanitarian Law and Human Rights and the CRDH-Paris Human Rights Center of the University Paris II Panthéon-Assas co-hosted on June 16 the “Strategies and prospects in prosecuting enforced disappearances: harmonizing the law and coordinating actors” seminar, which Civitas Maxima attended.
This expert seminar gathered judges, lawyers, prosecutors, human rights experts and academics, but also representatives of victims. It aimed at better understanding the causes of enforced disappearances’ poor record of criminal convictions and formulating strategies to put in place to remedy this situation.
Moving towards a more harmonized definition of enforced disappearances
The first challenge arises from the differing definitions of enforced disappearances found in the Rome Statute of the International Criminal Court and the International Convention for the Protection of All Persons from Enforced Disappearance. Both instruments define enforced disappearance as an arrest, detention, or abduction carried out by, or with the authorization or support of, the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or the whereabouts of the disappeared person.
However, the Rome Statute adds two notable elements: first, it includes not only states but also political organizations as possible perpetrators; second, it specifies that the act must be committed “with the intention of removing the person from the protection of the law for a prolonged period of time”, thereby emphasizing the deliberate and sustained nature of legal exclusion.
In addition to definitional differences, the discussion also highlighted legal challenges in the prosecution of enforced disappearances. These include the difficulty of establishing temporal jurisdiction due to statutes of limitation or the principle of non-retroactivity; the challenge of proving the specific intent required to distinguish enforced disappearance from ordinary abduction or unlawful detention; and the question of how and when non-state actors can be held legally responsible for such acts.
The confusion and lack of harmonization surrounding the definitions of enforced disappearances can discourage prosecutors from pursuing charges under this legal qualification. In particular, they may anticipate evidentiary difficulties in proving all constitutive elements of the crime — such as the involvement or acquiescence of state authorities, the concealment of the victim’s fate, or the specific intent to remove the person from legal protection — especially when legal standards vary between international and domestic frameworks. As a result, prosecutors may opt to reclassify such cases as abductions, arbitrary detentions, or, when the victim is ultimately killed, as murder and concealment of a corpse.
Moreover, jurisprudence and structured data on enforced disappearance remain scarce, which complicates efforts to identify consistent legal approaches and draw on prior case law. This lack of accessible information hinders the development of coherent prosecutorial strategies and contributes to the fragmentation of legal responses.
While some important initiatives — such as the Enforced Disappearance Legal Database (EDLD) developed by the European Human Rights Advocacy Centre (EHRAC) — have begun compiling relevant jurisprudence and legal reasoning, these efforts are still emerging and would benefit from broader institutional support and coordination. During the seminar, several practitioners — from both national jurisdictions and the International Criminal Court — emphasized the need for comprehensive and systematized databases documenting how enforced disappearances are prosecuted domestically.
Strengthening the coordination among actors at international and domestic levels
Seminar attendees worked together to propose measures to improve the prosecution and conviction rates for enforced disappearances. The first thing addressed was the need to clarify and harmonize the definition, however, it was acknowledged that standardization carries the risk of a demanding definition, the threshold of which would be difficult to meet. Attendees proposed capacity-strengthening initiatives, including professional exchanges and tailored workshops for investigators, prosecutors, and judges to ensure they are equipped with the necessary tools and expertise to address enforced disappearances cases.
In the final discussion, several participants reiterated the importance of improving access to structured information on domestic case-law related to enforced disappearances. They highlighted that a more systematic collection of such data could support international proceedings by offering prosecutors comparative insights and precedents to guide their legal assessments.
Finally, participants underscored the importance of recognizing the ongoing suffering of the relatives of the disappeared, highlighting that the daily uncertainty, threats, and anxiety they endure could, in some legal frameworks, be considered a form of torture – reinforcing the need to treat them as victims in their own right.
The seminar ended with acknowledgements of the progress made on recognizing enforced disappearances by building a network of international justice professionals and an announcement of plans to begin a newsletter to further raise awareness. Organizers expressed the hope that the insights and challenges discussed during the seminar would be shared with high level forums such as the Genocide Network, with a view to contributing to the development of practical guidelines for the prosecution of enforced disappearance cases, particularly by national and international practitioners.