ENFORCED DISAPPEARANCES
Each State Party may establish: Without prejudice to other criminal procedures, aggravating circumstances, in particular in the event of the death of the disappeared person or the commission of an enforced disappearance in respect of pregnant women, minors, persons with disabilities or other particularly vulnerable persons.
1. A State Party may at the time of ratification of this Convention or at any time afterwards declare that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction claiming to be victims of a violation by this State Party of provisions of this Convention. The Committee shall not admit any communication concerning a State Party which has not made such a declaration.
2. The Committee shall consider a communication inadmissible where:
(a) The communication is anonymous;
(b) The communication constitutes an abuse of the right of submission of such communications or is incompatible with the provisions of this Convention;
(c) The same matter is being examined under another procedure of international investigation or settlement of the same nature; or where
(d) All effective available domestic remedies have not been exhausted. This rule shall not apply where the application of the remedies is unreasonably prolonged.
3. If the Committee considers that the communication meets the requirements set out in paragraph 2 of this article, it shall transmit the communication to the State Party concerned, requesting it to provide observations and comments within a time limit set by the Committee.
4. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party will take such interim measures as may be necessary to avoid possible irreparable damage to the victims of the alleged violation. Where the Committee exercises its discretion, this does not imply a determination on admissibility or on the merits of the communication.
5. The Committee shall hold closed meetings when examining communications under the present article. It shall inform the author of a communication of the responses provided by the State Party concerned. When the Committee decides to finalize the procedure, it shall communicate its views to the State Party and to the author of the communication.
The International Convention for the Protection of All Persons from Enforced Disappearance (CPED) refers in its Article 7(2)(b) to ‘aggravating circumstances’ in the commission of an enforced disappearance ‘in respect of pregnant women, minors, persons with disabilities or other particularly vulnerable persons’. It is possible to interpret ‘other particularly vulnerable persons’ as inclusive of minorities and Indigenous peoples. The parallel Charter body, the UN Working Group on Enforced or Involuntary Disappearances, has noted: ‘For all cases, the Working Group highlights the condition of people in situations of vulnerability, including…persons belonging to minorities, Indigenous peoples’.169 Similarly, in its form to submit a request for urgent action, the Committee on Enforced Disappearances (CED) asks: ‘If deemed relevant, please indicate whether the victim belongs to any groups (for example, Indigenous peoples, national minorities (…)’170
CED’s mandate thus clearly engages minority and Indigenous rights, and it has raised such issues in its work. For example, in a country visit to Iraq, it noted that ‘[e]thnic and religious minorities were also targeted by acts amounting to enforced disappearance.’171 It estimated that around 6,800 Yazidis were abducted over a period of just a few days, with 3,000 still disappeared.172 In a visit to Mexico, it observed how ‘Indigenous communities have also been affected by disappearances.’173 It noted how these occur mainly in the context of social and territorial conflicts linked to mining or energy megaprojects or grabbing of land for economic exploitation by organized crime groups or other private actors, with varying degrees of involvement or acquiescence by public officials. Several victims had made allegations of disappearances of Indigenous persons that had been forcibly recruited by organized crime groups or other private actors.174 In concluding observations to Burkina Faso, CED was unconvinced by the State Party’s argument that disappearances were not linked to minority identity: ‘While it takes note of the State party’s assurances that the security crisis is not ethnicity-related, the Committee is nonetheless concerned that, according to the reports it has received, most enforced disappearances have been of persons belonging to or perceived as belonging to the Fulani People’.175
The CED may receive individual communications under Article 31 of the CPED from States Parties that have declared that they recognize the competence of the Committee to receive such communications. To date, 29 States Parties (out of 75 in total) have opted in to the mechanism. There have been just three decisions to date taken on the merits, in relation to Argentina, France and Mexico - none of these have raised any substantive issues of minority or Indigenous rights.
169 OHCHR, ‘Fact Sheet No. 6: Enforced Disappearances’ (Geneva: OHCHR 2023) 39 <https://www.ohchr.org/sites/default/files/documents/publications/Fact-sheet6-Rev4.pdf>
170 Quoted Ibid 118 para 3.20.
171 UN Doc. CED/C/IRQ/VR/1 (Findings) (2023) para 21.
172 Ibid.
173 UN Doc. CED/C/MEX/VR/1 (Findings) (2002) para 21.
174 Ibid.
175 UN Doc. CED/C/BFA/OAI/1 (2024) para 29. The Committee cited also the conclusions of CERD in support (at n 7).
