Legal Framework

Definition of Enforced Disappearance and Its Distinction from Other Forms of Deprivation of Liberty

The term _enforced disappearance_ refers to any act involving abduction, arrest, detention, or any form of deprivation of liberty carried out by official state authorities, or by non-state actors acting on behalf of the state, with its authorization, support, or acquiescence. Such acts may be committed directly by the competent authorities or indirectly through parties operating on their behalf or within the scope of their effective control—whether such authority is a national government or a de facto power in a specific territory.

These acts are typically followed by the authorities’ refusal to acknowledge the deprivation of liberty, denial of the detainee’s existence, or refusal to disclose the person’s whereabouts or fate. As a result, the disappeared individual is completely cut off from the outside world, deprived of the most basic legal rights—such as contacting family, obtaining legal counsel, or appearing before a judicial authority—and denied any form of legal protection or safeguard.

What gives enforced disappearance its distinctive nature and sets it apart from other crimes, such as arbitrary arrest or detention, is the element of deliberate denial and concealment by the perpetrating authority. This renders the fate and location of the person entirely unknown, eliminating any possibility of protecting them or ensuring their safety, and exposing them to multiple grave violations, including torture, extrajudicial killing, or summary execution.

While certain governmental authorities may engage in acts of arbitrary arrest or detention in violation of the law, such acts—serious as they are—do not in themselves amount to the crime of enforced disappearance unless accompanied by an official denial of the detention or a refusal to disclose the person’s fate or place of confinement. The fundamental difference between the two lies in the fact that arbitrary detention is often, to some extent, documented or acknowledged, even if unlawful, whereas enforced disappearance seeks to erase the person entirely from both legal and physical existence. It constitutes a distinct and more severe crime, as it entails the deliberate denial of fundamental rights and the intentional erasure of the identity and human existence of the disappeared person.

Criteria for Distinguishing Between Arbitrary Detention and Enforced Disappearance

• ### Legal Basis

In arbitrary detention, the legal grounds for holding a person are either unclear, lacking entirely, or fall outside the scope permitted by law—constituting a clear violation of procedural guarantees provided by law. In enforced disappearance, the very fact of the detention is denied altogether, thereby removing the person entirely from the realm of legal protection.

• ### Official Notification

In arbitrary detention, the detainee is deprived of the official notification of the reasons for their detention as required by law, and may be held for an indefinite period without informing them or their relatives. In enforced disappearance, the authorities deny the person’s existence or detention entirely, issuing no form of official notification, thereby deepening their legal and physical concealment.

• ### Record-Keeping

In arbitrary detention, the case may be recorded, though often without due process or transparency. In enforced disappearance, the victim is not recorded in any official register at all, and their identity and whereabouts are deliberately concealed.

• ### Contact with the Outside World

In arbitrary detention, the person may be denied contact with the outside world—whether with family or legal counsel—for varying periods, undermining their right to defense and communication. In enforced disappearance, the person is entirely deprived of any form of contact, greatly heightening the severity of the violation and preventing any oversight or accountability.

• ### Right to Appear Before a Court

In arbitrary detention, the detainee may be denied prompt access to a court or brought before it only after prolonged delays, in clear violation of the law. In enforced disappearance, this right is completely unavailable, as the authorities deny the detention altogether, making legal accountability impossible.

It is worth noting that the act of detention may initially be witnessed or documented—whether by family members or other eyewitnesses—but when the relatives of the detainee attempt to search for them or inquire with the authority that carried out the arrest, such inquiries are often met with outright denial. This includes denying the fact of the detention itself, as well as withholding any information about the person’s whereabouts or condition. This deliberate denial is a core element in the definition of enforced disappearance and is what distinguishes it from other similar violations.

Prohibition of Enforced Disappearance under International Human Rights Law

Enforced disappearance constitutes a composite crime that entails the systematic and direct violation of a range of fundamental legal rights and safeguards enshrined in international human rights law, to which the vast majority of the world’s states, including Yemen, have committed themselves. This crime not only affects the individual who has been forcibly disappeared, but also extends its impact to their family and community, causing severe psychological and social suffering.

Enforced disappearance stands in stark contradiction to the Universal Declaration of Human Rights—the foundational document of the international human rights protection system. Article 9 of the Declaration stipulates that “No one shall be subjected to arbitrary arrest, detention or exile,” meaning that any form of arbitrary deprivation of liberty—as occurs in cases of enforced disappearance—constitutes an absolute and unjustifiable violation.

The crime is not only incompatible with the Declaration; it also constitutes an explicit breach of the International Covenant on Civil and Political Rights, particularly the provisions relating to the right to life, liberty, personal security, and protection from torture or cruel, inhuman, or degrading treatment. Furthermore, it undermines rights related to family stability and livelihood as set forth in the International Covenant on Economic, Social and Cultural Rights.

International human rights law rests upon an integrated legal framework, deriving its legitimacy from written sources such as treaties and conventions, as well as customary norms developed through international practice and collective consensus. These legal instruments serve as binding references for state parties, which have pledged to uphold human dignity and guarantee the fundamental rights and freedoms of all individuals without discrimination.

In light of these instruments and principles, the prohibition of enforced disappearance has become an integral part of the international legal framework for the protection of human rights. This imposes a clear obligation on states to adopt effective legislative and institutional measures to prevent this crime, prosecute perpetrators, and guarantee victims’ rights to remedy and accountability.

The International Convention for the Protection of All Persons from Enforced Disappearance

The International Convention for the Protection of All Persons from Enforced Disappearance marks a milestone in the development of international human rights law. It is the first binding international instrument dedicated exclusively to enforced disappearance—covering its definition, criminalization, prevention, and punishment—while also safeguarding the rights of victims and their families. The Convention was adopted by the United Nations General Assembly on 20 December 2006 under Resolution A/RES/61/177, and entered into force on 23 December 2010. It affirms that enforced disappearance not only constitutes a grave violation of human rights, but under certain circumstances may amount to a crime against humanity, underscoring its destabilizing effect on societies and the rule of law.

One of the most significant aspects of the Convention is found in Article 24, which broadens the concept of “victim.” The Convention does not limit the term to the person subjected to enforced disappearance; it also encompasses any individual who has suffered direct harm as a result of the act, particularly members of the disappeared person’s family.

This expanded definition reflects a deep understanding of the complex nature of enforced disappearance, which affects not only the disappeared individual but also has profound psychological, social, and legal repercussions on those around them—especially family members, who endure ongoing suffering due to uncertainty about their loved one’s fate, and who are deprived of fundamental rights such as the right to truth, justice, and accountability.

Key Features of the Convention:

• • Independent and Explicit Criminalization of Enforced Disappearance: The Convention is the first binding international instrument to define enforced disappearance and criminalize it as a stand-alone offense, without the need to link it to other violations.
• Absolute Right Not to Be Subjected to Enforced Disappearance: Article 1 stipulates that the prohibition of enforced disappearance is absolute and may not be restricted or justified under any circumstances, including states of emergency, armed conflicts, or political crises.
• Classification of Enforced Disappearance as a Crime Against Humanity: Under Article 5, the Convention recognizes that when enforced disappearance is committed on a widespread or systematic basis, it constitutes a crime against humanity, making it imprescriptible and subject to the jurisdiction of the International Criminal Court.
• Recognition of Victims’ Rights: The Convention affirms the right of victims and their families to know the truth about the fate and circumstances of disappeared persons, and grants them the right to redress, material and moral compensation, rehabilitation, and restoration of dignity.
• Prohibition of Secret Detention and Guarantee of Transparency: States are required to establish a national register of all persons in detention and to provide necessary information about places of detention, thereby preventing unrecorded detention and strengthening judicial oversight.
• Effective Mechanisms for Monitoring and Accountability: The Committee on Enforced Disappearances (CED) was established as an independent international body to oversee implementation of the Convention’s provisions, receive state reports, consider individual complaints, and activate urgent procedures to search for disappeared persons.
• Obligation to Provide a Comprehensive Justice System: States parties must adopt effective legislative and administrative measures to criminalize enforced disappearance and hold perpetrators accountable—whether acting in an official or unofficial capacity—and are encouraged to establish independent national institutions to prevent the recurrence of the crime.
• Principle of Universal Jurisdiction: The Convention obliges states to prosecute offenders present on their territory, even if they are not nationals and the crime was not committed within their jurisdiction, reinforcing the principle of no impunity.
• Special Protection for Children: The Convention contains provisions for the protection of children born during secret detention or separated from their families, prohibits altering their identities, and guarantees their right to recover their names, families, and nationalities.

Core Obligations on States Parties under the International Convention for the Protection of All Persons from Enforced Disappearance:

• Criminalization in Domestic Law: States parties must incorporate enforced disappearance as a distinct criminal offense in their penal codes, consistent with the Convention’s definition.
• Prompt and Effective Investigation: States must investigate every case of enforced disappearance and take legal measures to bring those responsible before fair courts.
• Prevention and Non-Recurrence: Measures include enacting laws, training public officials, establishing independent oversight mechanisms, and ensuring transparency in arrest and detention procedures.
• Protection of Victims and Witnesses: States parties are obliged to provide legal protection to victims, their families, and witnesses from any threats or reprisals resulting from cooperation with authorities or filing complaints.
• Guaranteeing Victims’ Rights to Remedy and Compensation: States parties must ensure victims’ rights to reparation, rehabilitation, and guarantees of non-recurrence.
• International Cooperation: The Convention requires states to engage in judicial and technical cooperation to combat this crime, including extradition of offenders when necessary.
• Reporting to the Committee: States parties must submit periodic reports to the Committee on Enforced Disappearances on measures taken to implement the Convention and must cooperate fully with it.
• Right to the Truth: The Convention affirms the right to know the truth by guaranteeing transparent, independent investigations into incidents of enforced disappearance, sharing findings with victims and their families, providing access to archives, and protecting witnesses. This right cannot be restricted under any exceptional circumstances, thereby reinforcing transparency and enabling victims to obtain the justice they deserve.
• Centralized and Updated Registers: States parties bear a significant responsibility to establish centralized, regularly updated registers of persons deprived of liberty, containing precise details on their identities, reasons for detention, locations, and any transfers or deaths in custody. These registers must be accessible to judicial bodies and competent authorities, ensuring transparency and enabling all relevant actors to access such information promptly and easily.

Although the Yemeni government formally expressed its approval to accede to the International Convention for the Protection of All Persons from Enforced Disappearance—through a Cabinet resolution issued on 11 June 2013—Yemen has, to date, not completed the legal ratification procedures necessary to become an official State Party to the Convention. This means that the Convention has not entered into force for Yemen, and the country remains outside the binding legal framework of its international provisions, despite repeated calls from human rights and international organizations to expedite ratification in light of the widespread crimes of enforced disappearance occurring during the ongoing conflict.

Enforced Disappearance under the Four Geneva Conventions and their Additional Protocols

Common Article 3 to the four Geneva Conventions of 12 August 1949 established a fundamental prohibition on enforced disappearance in armed conflicts, including non-international conflicts, even though the term “enforced disappearance” is not explicitly mentioned. It obliges all parties to treat humanely all persons who have laid down their arms or ceased to take part in hostilities, and prohibits murder, torture, cruel or degrading treatment, hostage-taking, and the passing of sentences without a fair trial. When a person is secretly detained and their detention is denied or their whereabouts concealed, the victim is deprived of fair trial guarantees and humane treatment, thus constituting enforced disappearance—an act combining arbitrary detention with the deliberate denial of existence, placing the victim entirely outside the protection of the law.

Additional Protocol II (1977) reinforced this prohibition by setting out further guarantees for all persons detained in non-international armed conflicts. Article 4 enshrines the general principle of humane treatment, prohibiting killing, torture, inhumane treatment, threats, and hostage-taking. Under enforced disappearance, victims are sometimes forced into coerced confessions or isolated completely from the outside world—acts that grossly violate this article. Article 5 requires parties to ensure humane conditions of detention, including prompt notification of arrest, the right to correspondence, and the right to visits. Article 6 affirms the right of detainees to a fair trial before an independent and impartial judicial authority.

Article 32 of Additional Protocol I (1977) recognizes the right of families to know the fate of their disappeared relatives as a general guiding principle, reinforcing the commitment of states, armed parties, and humanitarian organizations to the continuous search for missing persons and their remains.

In examining preventive measures to avoid persons being classified as missing, it is clear that states and armed parties must establish effective identification mechanisms—such as issuing identity cards, military service cards, or distinctive tags to enable tracking of individuals within armed forces or groups; permitting detainees to communicate with their families under appropriate safeguards to ensure their safety; and creating national information bureaus or official services to record graves and missing persons reports, as stipulated in the Geneva Conventions. This also includes registering available death certificates and managing human remains with dignity.

This integrated framework of treaty-based and customary norms—from Common Article 3, to the provisions of the Additional Protocols, to customary international law—reflects the commitment of the international community to ensuring that enforced disappearance does not go unpunished, and to enabling victims’ families to learn the fate of their loved ones while preserving their dignity, whether in life or in death.

Enforced Disappearance in Customary International Humanitarian Law

Customary international humanitarian law (IHL) is a fundamental pillar in the protection of individuals during armed conflicts, whether international or non-international. This body of law is unwritten, deriving from consistent and general international practice accepted as law, making it binding on all states, including those that have not ratified the relevant international treaties. Its rules are drawn from “general practice accepted as law,” as stipulated in Article 38 of the Statute of the International Court of Justice.

The importance of customary IHL lies in its ability to address gaps in the protection of civilians and combatants outside the scope of treaty law—particularly in non-international armed conflicts, which constitute the majority of current conflict situations. In fact, the legal framework governing internal armed conflicts is more detailed under customary international law than under treaty law, thereby strengthening victim protection in such contexts.

To reinforce this legal framework, the International Committee of the Red Cross (ICRC) launched in 1996 an extensive study, in collaboration with a group of international experts, to collect and analyze state practice in the field of armed conflict. This effort culminated in 2005 with the publication of a comprehensive reference containing 161 customary rules binding on all parties to a conflict, offering uniform protection regardless of the political or legal classification of the conflict.

Among the prominent issues addressed by customary IHL is the phenomenon of enforced disappearance, which is prohibited in both international and non-international armed conflicts. Rule 98, contained in Volume II, Chapter 32, Section (L) of the ICRC Study, addresses enforced disappearance, noting that while IHL treaties do not explicitly use the term, committing such acts constitutes—or threatens to constitute—a violation of several fundamental customary rules of IHL. These include the prohibition of arbitrary deprivation of liberty, and the prohibition of torture and other cruel, inhuman, or degrading treatment. The rule stresses that in non-international armed conflicts, parties are obliged to take effective measures to prevent enforced disappearance, including registering all persons deprived of their liberty and safeguarding family contact.

Rule 98 further affirms that every instance of enforced disappearance constitutes a dual violation—of both IHL and international human rights law. When committed on a widespread or systematic scale, it qualifies as a crime against humanity, subject to accountability under international criminal law. The rule also highlights the existence of extensive state practice confirming that the prohibition of enforced disappearance entails a duty to investigate every alleged case, reflecting both a legal and moral obligation on states and conflict parties to uncover the truth and ensure justice for victims and their families.

In 1981, the 24th International Conference of the Red Cross declared that enforced disappearance constitutes a grave violation of several fundamental human rights, including the right to life, liberty, and physical and mental integrity, as well as protection from torture or cruel, inhuman, or degrading treatment. The Conference also stressed that enforced disappearance undermines basic legal safeguards, such as the right not to be subjected to arbitrary arrest or detention, and the right to a fair and public trial. This position strengthened international recognition of the gravity of this practice and its stark incompatibility with humanitarian principles and international law.

International practice has since evolved to cover not only missing or forcibly disappeared civilians and other non-combatants, but also members of the armed forces reported missing by the adverse party, in both international and non-international armed conflicts, in accordance with Rule 117. This expansion reflects the principle that all missing persons, regardless of their status or affiliation, share the same right to have their fate determined and reported.

The rule also underscores the importance of recording all available information on deceased persons before disposing of their remains—an essential step in documenting deaths and ensuring proper identification of bodies in the future. This requirement applies in all types of conflicts, whether international or non-international. International practice confirms that this is a due diligence obligation, meaning that parties must take active measures, including, where necessary, searching for and exhuming graves and analyzing evidence, to determine the fate of the missing. This is grounded in the legitimate right of the families of the missing to know the truth.

Enforced Disappearance under the Rome Statute

The Rome Statute explicitly includes enforced disappearance among the crimes falling within the subject-matter jurisdiction of the International Criminal Court (ICC). Article 7(1)(i) stipulates that the “enforced disappearance of persons” constitutes a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population.

Article 7(2)(i) defines this crime as: “the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.”

Although the Rome Statute lists enforced disappearance as a crime against humanity, its consequences often amount to other serious violations that may fall under the category of war crimes. Article 8(2)(b) recognizes “outrages upon personal dignity” as a form of war crime—applicable to enforced disappearance when accompanied by inhumane or degrading conditions of detention, or when committed in the context of an international or non-international armed conflict.

This is reinforced by Article 8(6), which classifies as a war crime the “wilful deprivation of the rights of fair and regular trial” for prisoners of war or other protected persons. This applies to victims of enforced disappearance, who are denied their most basic legal rights, including recognition of their legal existence and the right to appear before a judge.

Accordingly, in certain contexts, enforced disappearance can also be prosecuted as a war crime, particularly when committed in the course of armed conflict and when its constitutive elements meet the Rome Statute’s definition of war crimes.

Enforced disappearance is considered a continuing crime, meaning that it does not cease nor is it deemed completed until the fate or whereabouts of the disappeared person is revealed. This characteristic allows for the prosecution of its perpetrators even long after the act began.

The Rome Statute addresses this feature in Article 29, which clearly stipulates that crimes within the Court’s jurisdiction—including enforced disappearance—are not subject to any statute of limitations. This constitutes a critical legal safeguard, ensuring that victims and their families may seek justice without temporal restrictions.

By contrast, the International Convention for the Protection of All Persons from Enforced Disappearance (2006) in Article 8 allows for the application of statutes of limitations to this crime, while recognizing its continuous nature. The Convention stipulates that limitation periods should commence from the time the enforced disappearance ceases and must be long enough and proportionate to the gravity of the offense, without prejudicing victims’ rights to effective remedies.

Thus, while the Rome Statute absolutely rejects prescription for such crimes, the Convention permits conditional limitation periods. This divergence underscores the need to examine carefully the coherence and complementarity of international legal frameworks when dealing with protracted and complex crimes such as enforced disappearance.

Yemen signed the Rome Statute on 28 December 2000 but has not ratified it. However, lack of ratification does not preclude reliance on the Statute’s principles and provisions as an authoritative international legal reference for classifying international crimes and grave violations committed in armed conflict, especially in relation to enforced disappearance.

Moreover, invoking the Rome Statute in non-party states can help increase international pressure and provide a solid legal basis for claims grounded in customary international law—particularly with respect to serious international crimes such as enforced disappearance, which engage state responsibility and are subject to universal jurisdiction.

Therefore, while the absence of formal accession to the ICC poses an obstacle, it does not preclude the pursuit of justice. Rather, it may serve as a catalyst for investing in alternative accountability avenues—such as recourse to United Nations treaty and non-treaty mechanisms, the establishment of independent investigative commissions, and the strengthening of civil society organizations in documenting violations and building legal case files that could form the foundation for future prosecutions before national or international judicial bodies.

Enforced Disappearance in National Legislation

In the Yemeni context, the legislature has not yet enacted a specific law criminalizing “enforced disappearance” as a distinct offense, nor has the term “enforced disappearance” been explicitly mentioned in any of the applicable legal provisions. However, the absence of such a specific legislative text does not necessarily mean that the Yemeni legal system completely lacks the legal means to address this crime. The Yemeni Constitution and several relevant laws contain dispersed legal safeguards that, taken together, form a legal foundation from which to combat enforced disappearance and hold its perpetrators accountable.

Article 6 of the Yemeni Constitution stipulates the State’s commitment to international treaties and conventions it has ratified, including the United Nations Charter and the Universal Declaration of Human Rights—international instruments that criminalize enforced disappearance as a grave violation of human rights. Article 47 establishes the principle of criminal legality, stating that no act is a crime and no penalty may be imposed except by virtue of a Sharia or legal provision. This obligates the State to provide clear definitions of crimes and their constituent elements, including acts that infringe upon personal liberty and human dignity.

Article 48 reinforces this protection by affirming that personal freedom is inviolable and may only be restricted by a judicial order. It also prohibits detention outside facilities regulated by the Prisons Law and criminalizes all forms of torture and cruel or inhuman treatment.

These constitutional principles are reflected in several laws, most notably Law No. 12 of 1994 on Crimes and Penalties. Article 246 of this law criminalizes unlawful arrest or detention, with harsher penalties if the act is committed by a public official, involves the use of weapons, targets a minor, or is committed against a person lacking mental capacity. Moreover, article 247 criminalizes the establishment of unauthorized detention facilities, while Article 249 addresses the crime of kidnapping, imposing varying penalties depending on the gravity of the accompanying acts—up to and including the death penalty if the kidnapping results in killing or sexual assault.

Similarly, Law No. 13 of 1994 on Criminal Procedure enshrines in its opening articles the principle of individual criminal responsibility and the presumption of innocence. Article 6 prohibits the use of torture or coercion to extract confessions, rendering null any confession obtained through physical or psychological harm. Articles 12–14 require judicial authorization for the search of residences, while Article 16 stipulates that crimes affecting liberty and dignity are not subject to a statute of limitations—naturally encompassing the crime of enforced disappearance.

Along the same lines, the Law No. 48 of 1991 on the Organization of Prisons, as amended by Law No. 26 of 2003, sets strict conditions for admission into prisons. Article 8 prohibits the imprisonment of any person without a written judicial order or a final judgment, and Article 10 obligates prison administrations to admit no person except pursuant to enforceable judicial rulings or orders from the Public Prosecution in cases of pre-trial detention.

These provisions affirm that detention must occur in lawful facilities and through lawful procedures, providing a fundamental safeguard against arbitrary detention and laying a legal groundwork for prosecuting enforced disappearance cases, despite the absence of a specific provision.

Referring back to Article 246 of the Crimes and Penalties Law, titled “Restriction of Liberty,” the legislator prescribes a prison sentence of up to three years for anyone who unlawfully arrests, detains, or otherwise deprives a person of their liberty. The penalty increases to five years in aggravated circumstances, such as when the offender is a public official or equivalent, uses a weapon, acts in concert with others, targets a minor or a person lacking mental capacity, or exposes the victim’s life to danger.

Article 249 criminalizes kidnapping, with penalties ranging from imprisonment of up to five years to harsher sentences if the crime is committed with force or against vulnerable persons. The death penalty applies if the kidnapping is followed by killing or sexual assault.

It is worth noting that the Anti-Kidnapping and Highway Robbery Law, as a special law, takes precedence over general provisions like Article 249 in cases of conflict, in accordance with the legal maxim “the special prevails over the general.” Article 1 of this law provides that if a person or group leads a gang dedicated to kidnapping, highway robbery, or the forcible seizure of public or private property, they shall be punished by death—a penalty that also applies to all participants alongside the gang leader.

Article 2 of the Anti-Kidnapping and Highway Robbery Law addresses the crime of kidnapping itself, criminalizing the abduction of any person with imprisonment for no less than twelve years and no more than fifteen. If the victim is a woman or minor, the penalty increases to twenty years. Where kidnapping is accompanied by physical harm or assault, the prison term may extend to twenty-five years, and in cases where the crime ends in killing or sexual assault, the death penalty applies.

Article 8 doubles all the aforementioned penalties if the perpetrator is a member of the state armed forces, security forces, or a public official. In light of the above, it is evident that although the Yemeni legislator has not set forth a specific provision criminalizing enforced disappearance, it has criminalized its constituent acts through multiple legal provisions. This allows for building a legal approach—grounded in general rules—that can be employed by lawyers, civil society organizations, and the Public Prosecution to legally characterize enforced disappearance and pursue its perpetrators, relying on constitutional principles and international obligations.

Remains of Victims of Enforced Disappearance and Mass Graves in International Law

The fate of the bodies of victims of enforced disappearance and their presence in mass graves represents one of the most striking dimensions of this compounded crime. The violation does not end with depriving the victim of liberty and life, but extends to denying their relatives the right to bury them and to know their fate.

To safeguard the dignity of the dead and the rights of their families, the status of the remains of victims of enforced disappearance and the sites of mass graves has been accorded significant prominence in international legal instruments. Treaties and customary rules stipulate the need to respect the remains of the deceased, prevent tampering, and ensure their recovery.

Article 15 of the International Convention for the Protection of All Persons from Enforced Disappearance obligates States to fully cooperate in searching for those forcibly disappeared, determining their whereabouts, and securing their release. In the event of death, States are required to exhume the remains, establish their identity, and rebury them.

Article 17 of the Convention requires each State Party to maintain official registers or records containing the names of all persons deprived of liberty. These registers must include, at a minimum, detailed information on the circumstances and causes of death, as well as the authority to which the remains were transferred when a person dies while in custody. Such records must be updated immediately and kept available to any judicial authority or other competent and qualified institution—either under national legislation or international instruments to which the State is party—for consultation whenever requested.

Article 18 guarantees the right of relatives of detainees or their legal representatives to access this information immediately upon request, provided they establish a legitimate interest, enabling them to learn exactly what happened to their loved ones.

The responsibility of States goes beyond documentation. They must take all appropriate measures to search for persons subjected to enforced disappearance, identify their places of detention, and secure their release if alive. If they are found to have died, States must also take all necessary steps to locate their remains with precision, respect their dignity, and either rebury them or hand them over to their relatives.

The Four Geneva Conventions of 1949 require parties to an armed conflict to respect the bodies of the dead, prohibit their desecration or looting, and record the locations of both individual and mass graves, placing them under official management to ensure future visits. The 1977 Additional Protocols of Geneva Conventions expanded these obligations, committing parties to a strict duty to search for, collect, and evacuate the bodies of the deceased without discrimination, to return the remains and the victims’ personal belongings upon request by the State of nationality or their families, and to issue official burial certificates accurately identifying the deceased.