The International Convention for the Protection of All Persons from Enforced Disappearances (ICPPED) is the main treaty that prohibits enforced disappearances and ensures justice and reparation to victims of enforced disappearances and their families.
Article 2 of the ICPPED defines enforced disappearance 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 authorisation,support or acquiescence of the State, following 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.”
Therefore, there are three cumulative elements in order to classify enforced disappearance as such:
(1) Deprivation of liberty against the will of the person;
(2) Involvement of government officials, at least by acquiescence, authorisation or support;
(3) Refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person, which places the disappeared outside the protection of the law.
The International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) entered into force on 23 December 2010. As of 2018, the ICPPED has been signed by 98 states. These do not include Libya, which has yet to sign and ratify it. Our work aims to pressure and incentivise Libya to become a party to the ICPPED and incorporate its provisions into the Libyan criminal laws.
Libya is party to the International Covenant on Civil and Political Rights (ICCPR) as well as other major international instruments including the Convention Against Torture (CAT), which enshrine rights that are often violated when enforced disappearances take place. Enforced disappearances infringe upon a range of human rights embodied in these instruments, including the right to be free from arbitrary arrest and detention, the right to freedom from torture and other ill-treatment, the right to a fair trial, the right to protection under the law and the right to life.
The Rome Statute of the International Criminal Court (ICC) qualifies enforced disappearances as a crime against humanity when committed as part of a widespread or systematic scale targeting civilian population. While Libya has not signed the ICC Rome Statute, the ICC has jurisdiction over crimes listen in the Rome Statue committed on Libyan territory or by Libyan nationals, as a result of United Nations Security Council Resolution 1970, which was passed unanimously in February 2011.
1. The victims themselves
Victims of enforced disappearances tend to be political opponents, journalists, human rights defenders, lawyers and people from vulnerable groups.
2. The families of the disappeared
Families of the victims are also identified as victims by the ICPPED as they also suffer harm and live in anguish. The search for their loved ones can be endless and they risk abuses themselves in their search for the truth.
Enforced disappearances have an impact on communities as a whole. Communities are affected by the crime which instils fear in the targeted community.
During the Gaddafi regime, the state and its agencies systematically used enforced disappearances, torture and other ill-treatment to target political opponents, students, journalists, human rights defenders and anyone who would be critical or perceived as posing a threat to the regime whether inside or outside Libya. Thousands of victims were arrested and subjected to enforced disappearances for years, with their whereabouts unknown and the government refusing to disclose information about their fate or location.
Since 2011 and the fall of Gaddafi, the situation in Libya deteriorated and the pattern of enforced disappearance continued to be a widespread practice. Militias linked to the two governments in the east and west of Libya are responsible for torture and other ill-treatment and enforced disappearances across Libya. Militias hold thousands of people under periods of enforced disappearances and subject them to torture and other gross human rights violations. Victims have little or no recourse to judicial remedy or reparations, while members of militias enjoy total impunity. Militias routinely abduct people from the streets, checkpoints, homes, places of work and hold them under conditions of enforced disappearance with no access to lawyers, families and outside the oversight of the judiciary. Militias usually deny that they are holding the disappeared person or that they are in their custody when their families try to ask about their whereabouts. Usually, detainees would be held under conditions of enforced disappearance until they are transferred to an official place of detention such as prisons under the governments.Militias usually target people based on their real or perceived political positions and views, tribal affiliations, or for financial gains. Since 2019, there has been a sharp uptake of the incidence of enforced disappearances in Libya. The victims of these abductions are mostly public officials, journalists, human rights defenders and activists. Most recently Siham Sergiwa, a prominent women’s rights defender and a sitting member of the House of Representatives (HoR), was abducted and forcibly disappeared on 17 July 2019. Sergiwa has recently criticised the Libyan National Army offensive on Tripoli and called for the formation of a civilian state. , her whereabouts remain unknown.
LFJL is currently working alongside other NGOs to prevent and eradicate enforced disappearances in Africa and to bring justice to victims of enforced disappearances.
In Libya, we aim to empower victims to speak about their own experiences and to highlight this issue with the national authorities and at the regional level with the African Union. We also seek to encourage the African Commission on Human and Peoples’ Rights to adopt comprehensive guidelines on enforced disappearances in Africa in order to prevent and eradicate the practice of enforced disappearances in the continent.
Check out the joint press release on the pattern of enforced disappearances in Africa that LFJL, along with other organisations, issued on the International Day of the Victims of Enforced Disappearances on August 30.