The International Convention for the Protection of All Persons from Enforced Disappearance and Its Contributions to International Human Rights Law, with Specific Reference to Extraordinary Rendition

Article excerpt

The first Part of this article presents the major advances in international human rights law introduced by the International Convention for the Protection of All Persons from Enforced Disappearance ('CPED'). The second Part examines the legal nature of the United States's practice of extraordinary rendition with the intention of establishing when and under what conditions extraordinary rendition is an illustration of enforced disappearance, as defined in the CPED.

CONTENTS

I   Introduction
II  Enforced Disappearances in International Law
    A Customary Law
      1 Traditional School of Thought
      2 Mitigated Traditionalism
      3 A Modern Interpretation of Customary Law
      4 A 'Human Rights Method' of Custom Formation?
      5 Deconstructing Disappearances
    B Enforced Disappearance in Jus Scriptum
III What is the Relationship between 'Extraordinary Rendition' and
    Enforced Disappearance?
IV  The International Convention for the Protection of All Persons
    against Enforced Disappearance: The Added Value
    A Non-Derogable Nature
    B Non-Refoulement
    C Jurisdiction
    D Universal Jurisdiction
    E Secret Detention
    F Victims and the Right to Truth
    G Monitoring Body
V   Concluding Remarks

'This means that both states and insurrectionaries feel they have a moral justification for barbarism'.

--Eric Hobsbawm, Globalisation, Democracy and Terrorism (1)

I INTRODUCTION

In 2007, the United Nations opened for signature the International Convention for the Protection of All Persons from Enforced Disappearance ('CPED'). (2) The adoption of CPED was the culmination of an arduous effort, which was initiated in the early 1980s, undertaken mainly by non-government organisations ('NGOs') and relatives of persons who had been subjected to enforced disappearance.

Enforced disappearance is predominantly associated with the practice of human rights violations by Latin American totalitarian regimes of past decades. From the 1960s to 1990s, these regimes had launched an unprecedented attack against sections of their own societies under the cover of what had euphemistically been referred to as a 'subversive threat'. (3)

Historically, the first instance of the systematic practice of enforced disappearance by a state is attributed to the Nazis. Their infamous 'Nacht und Nebel' decree (4) provided for the secret transport of offenders, effectively political prisoners and members of national resistance movements, to Germany where '(a) the prisoners [would] vanish without leaving a trace, (b) no information [would] be given as to their whereabouts or their fate'. (5) The practice was deployed with the purpose of spreading terror among civilian populations, deterring them from supporting or joining resistance movements and punishing resistance members.

This scheme of disappearances, as devised and executed by the Nazis, was directed without any discretion against civilians in the occupied territories and, unsurprisingly, without any due process of law. It was applied bluntly and on a massive scale against the population and its perpetrators did not bother to inquire further into the details of each particular case. (6) This was a characteristic inextricably linked to the dehumanising nature of the Nazi ideology. High-ranking officials, such as Field Marshal Wilhelm Keitel, were subsequently convicted during the Nuremberg trials on the grounds that they ordered enforced disappearances. (7)

The Second World War was succeeded by a period of universal human rights euphoria. In the aftermath of the war, the international community turned its attention to the respect and promotion of human rights. The Universal Declaration of Human Rights ('UDHR'), (8) the International Covenant on Economic, Social and Cultural Rights ('ICESCR'), (9) and the International Covenant on Civil and Political Rights ('ICCPR') (10) with its two Optional Protocols (11) heralded a new era for international law and still stand as the foundation for human rights in the world. …