Invisible Wounds: The Enduring Impact of Enforced Disappearance

Confronting the Invisible Crime: From Commemoration to Demand for Change

The act of enforced disappearance represents one of the gravest human rights violations recognised under international law. On 21 December 2010, through Resolution 65/209, the United Nations (“UN”) General Assembly expressed deep concern over the increasing number of enforced disappearances worldwide. This violation is defined as any act of arrest, detention, or abduction that is followed by refusal to acknowledge the person’s fate or a concealment of their whereabouts. For this reason, the UN established the International Day of the Victims of Enforced Disappearance, commemorated annually on August 30th, as an official occasion to confront and raise global awareness of this human rights violation. The very institutions charged with safeguarding citizens become the perpetrator of their persecution. It is in response to this profound injustice that the international day was created. This day serves not as a celebration, but as a moment of remembrance and solidarity, honouring those who have been forcibly taken from their families, often by state authorities or with state approval, and whose fate remains deliberately concealed. 

This day highlights several critical aspects of human rights violations by exposing how enforced disappearances are deliberately used as political tools by state actors to terrorise communities, spreading fear that goes far beyond the targeted victims. While the victims themselves endure profound suffering, their families are left to face decades of uncertainty and anguish. This is a reality that no longer can be ignored. The International Day of The Victims of Enforced Disappearance is therefore more than a symbolic gesture as it honours the victims, supports affected families, demands accountability, challenges impunity, and promotes the prevention of future violations. This commemoration extends beyond that of a symbolic recognition, as it as well encompasses  the ongoing practical struggles for justice around the world.

Legal Frameworks Governing Enforced Disappearance

The primary legal framework addressing enforced disappearance is the International Convention for the Protection of All Persons from Enforced Disappearance (“ICPPED”). It was adopted by the UN General Assembly on 20 December 2006 and subsequently entered into force in 2010. ICPPED declares the fundamental right of every person to be safeguarded from enforced disappearance as non-derogable, meaning that it cannot be suspended or justified under any circumstances. This functions as an instrument of international criminal law by establishing clear standards for individual criminal responsibility. It thereby ensures that perpetrators of enforced disappearance can be held personally accountable regardless of their official position. Categorising enforced disappearance as a crime under international law, Article 2 of the ICPPED characterises the act as the arrest, detention, or abduction of persons by state agents or those acting with state authorisation, followed by a refusal to acknowledge the deprivation of liberty or concealment of the person’s fate or whereabouts. Essentially, an act of enforced disappearance has three core elements,  (1) deprivation of liberty; (2) state involvement; and (3) refusal to disclose the fate and whereabouts, thereby removing the individual from the protection of the law.

 Beyond definition, ICPPED imposes binding obligations on state parties through various provisions with different objectives. One of which is seen under Article 24 of the ICPPED, ensuring victims and their families the right to truth by requiring disclosure of the fate and whereabouts of the disappeared, as well as securing appropriate reparations for the harm suffered. As a means to  ensure compliance, ICPPED established the Committee on Enforced Disappearances (“CED”), an independent monitoring body that primarily functions as an oversee state implementation of the convention. Its mandate is to review state reports, handle urgent actions, and form decisions on submitted complaints. Additionally, ICPPED functions as an instrument of international criminal law by establishing clear standards for individual criminal responsibility. It thereby ensures that perpetrators of enforced disappearance can be held personally accountable regardless of their official position.

While the ICPPED establishes the primary obligations of states to prohibit, criminalize, and remedy enforced disappearance, it is equally important to consider how international law addresses the consequences of noncompliance. Enforced disappearance falls within the Articles on Responsibility of States for Internationally Wrongful Acts’s (“ARSIWA”) framework as it is an internationally wrongful act that is attributable to the state, and creates obligations for the state. Regarding this, the International Law Commission has made clear that the ARSIWA were drafted “by way of codification and progressive development” to set out the basic rules of international law concerning state responsibility. Under international law, states are primarily responsible for protecting and upholding human rights. This obligation is reinforced by ARSIWA, which asserts that a state commits an internationally wrongful act when an act attributable to it breaches international obligation. This demonstrates that states have a duty to implement all feasible preventive measures against enforced disappearances, undertake swift and fair investigations, hold all perpetrators accountable regardless of their authority and associations, and guarantee reparations for victims and their families.

When a state is held responsible, Article 34 of the ARSIWA has clearly stated that full reparation may take the form of restitution, compensation, and satisfaction. In practice, restitution in enforced disappearance cases often proves impossible as victims are most likely never to be found, or are found deceased, so reparation is usually achieved through compensation in the shape of financial support to families and satisfaction such as public apologies, acknowledgement, and state’s positive obligation that includes investigations, persecutions, and a guarantee on non-repetition. Furthermore, Article 44 establishes that violations of duties owed to the international community as a whole, like the prohibition of enforced disappearance, constitute legally admissible claims. This signifies that enforced disappearance is a violation not just against the victim and their families, but also against the entire international community.

The prohibition of enforced disappearance is also further strengthened through other international treaties. Although the International Covenant on Civil and Political Rights (“ICCPR”) does not explicitly mention enforced disappearance, the practice inherently violates several fundamental rights protected by the treaty, including the rights to life, liberty, freedom from torture, etc. Building on this, the Rome Statute, the founding treaty of the International Criminal Court (“ICC”), explicitly recognises enforced disappearance as a crime against humanity under Article 7. This also establishes individual criminal responsibility, which is critical for a crime like enforced disappearance that is often directed by the state itself. It ensures that the specific officials who plan, order, or carry out the act of making a person disappear can no longer hide behind their government positions and can be held personally accountable before the ICC.

Furthermore, the profound suffering caused by enforced disappearance closely aligns the practice with torture under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). Article 1(1) of the CAT defines torture as any act that causes severe pain towards a person for the purposes of gaining information, giving punishment, intimidation, or any kind of discrimination, if allowed by a public official or other person acting in an official capacity. Although CAT does not specifically mention enforced disappearance, it has clarified in its jurisprudence that such practices may fall within the scope of Article 1.  In Celis Laureano v. Peru (IACtHR, 1995) and Kurt v. Turkey (ECtHR, 1998), the prolonged uncertainty and anguish inflicted upon the relatives of the disappeared was recognized as inhuman treatment amounting to torture. This specific form of psychological suffering has been directly confirmed as torture under the convention.

At the regional level, legal frameworks addressing enforced disappearance vary in both scope and enforceability. Albeit not yet to ratify ICPPED, Indonesia has provided the legal basis for prosecuting human right violation, which includes enforced disappearance, through Legislation Number 26 of 2000 concerning Human Rights Court. In contrast, the Americas has developed a more comprehensive regional framework. The Inter-American Convention on Forced Disappearance of Persons, adopted by the Organization of American States, not only defines enforced disappearance, but also recognises it as an international crime, obligating member states to prevent, punish, and eradicate the practice of enforced disappearance. The Inter-American Court of Human Rights has applied this convention alongside the American Convention on Human Rights in landmark cases  such as Velásquez Rodríguez v. Honduras (1988), establishing binding precedents that clarify states’ preventive, investigative, punitive, and reparative duties.

Inadequacies of the Current Legal Frameworks

One of the most significant barriers to fully implement its application under international law is the ICPPED’s limited number of ratifications. According to the United Nations Treaty Collection, only 77 of the 98 states that signed the ICPPED have actually ratified it, with this participation gap being most notable among countries with historical or ongoing issues of enforced disappearance. States such as Indonesia, India, Sweden and Kenya, have not ratified the ICPPED. This gap therefore undermines the universal application of legal protections and leaves victims in certain jurisdictions without the full scope of international oversight and remedies. Moreover, the enforcement of international law relies heavily on the political will and cooperation of states, which often proves to be its weakest link. This absence of cooperation causes investigations to stall and allow impunity to prevail. Furthermore, states create complications when their domestic laws conflict with international obligations. Many states enact amnesty laws that grant immunity to perpetrators of enforced disappearances, directly contradicting the ICCPED’s prohibition of impunity. As a result, these laws protect offenders, nullify international standards, perpetuate cycles of abuse, and deny victims their right to justice and accountability. 

The conflict between international obligations and domestic legal framework is not merely theoretical. In Egypt, the government has failed to criminalise enforced disappearance under domestic law, and its counter-terorrism legislation effectively permits extended periods of detention without outside contact. Similarly, Libya’s domestic law does not fully comply with international standards, and its justice system lacks independence and capacity to hold perpetrators accountable, especially given the influence of armed groups. These cases illustrate that insufficient domestic legal frameworks and a lack of judicial independence foster a climate of impunity. As a result, when states grant immunity to offenders, they undermine their international obligations and perpetuate a cycle of injustice, leaving victims and their families without access to effective legal remedies.

The Lasting Impact of Enforced Disappearance

The disruption caused by the disappeared person leads to family members experiencing severe economic, social, and psychological hardship for spouses and children. As men are the most common victims of enforced disappearances, the consequences fall disproportionately upon women. When the family’s main provider disappears women are often left to deal a heavy economic burden, a situation recognised under Article 24 of ICPPED. Beyond these financial hardships, the entire family often faces severe social isolation, shunned by their communities either because the disappeared person is suspected of a crime or because others fear the repercussions of associating with them. This social hardship is frequently compounded by legal and financial barriers. In some states, laws requiring a death certificate prevent families from accessing pensions or other vital support, a policy that effectively revictimises them and deepens their vulnerability. The combined weight of this economic distress and the emotional devastation of their loss inflicts severe trauma on families, harming their physical and psychological wellbeing. 

Although international law recognises the family of the disappeared as direct victims with a right to protection, assistance, an adequate standard of living, health, and education, a cruel paradox exists. While on paper they are shielded by fundamental rights, the crime is often planned to make these rights impossible to claim. The system places the entire “burden of proof” on the victims’s families (actori incumbit onus probandi), forcing them to prove their loved one’s fate. Their path to justice is also often blocked by procedural requirements, such as the rule of “exhaustion of local remedies,” a principle abused by states, as outlined in Article 44 of the ARSIWA. Victims are therefore put in a deeply unfair position of seeking justice from the very state that committed the crime, requiring them to request evidence that is exclusively controlled by the perpetrator. This denial of a fair and impartial process constitutes a clear violation to international legal principles. Compounding this injustice is the state’s failure to provide full reparation, consisting of restitution, compensation, and satisfaction for the immense harm suffered by the family, which violates the obligation outlined in Article 34 of the ARSIWA.

Indonesia’s 1998 Tragedy and the Persistence of Impunity

While these challenges highlight the weakness of international enforcement mechanisms, their impact is most visible when examined through specific national contexts. For instance, states that have signed but not ratified the ICCPED, often demonstrate the gap between their rhetorical commitment and their actual accountability. Indonesia offers a telling example, that despite its history of human rights violation, particularly during the political turmoil of the late 1990s, Indonesia has yet to ratify the convention.

In 1998, Indonesia witnessed mass student demonstrations known as the “Tuntutan Reformasi 1998”, which demanded President Soeharto’s resignation, constitutional reform, the dismantling of the military’s dual function (Dwifungsi ABRI), the eradication of corruption, collusion, and nepotism, and stronger human rights protections. On 12 May, security forces opened fire on student protesters from Trisakti University, killing four, followed by further violence at Atma Jaya University that left nine more dead. The conflict triggered widespread riots across Jakarta, marked by looting, arson, and sexual violence, particularly targeting ethnic chinese women. During this period, Indonesia’s National Commission on Human Rights (“Komnas HAM”) reported the abduction of 22 pro-democracy activists, of whom only nine returned, leaving 13 still disappeared. These enforced disappearances formed part of a systematic pattern internationally recognised as crimes against humanity under the ICCPED.

More than two decades later, the fate of the 13 activists remained unknown, symbolising a persistent injustice. Although Komnas HAM concluded that serious human rights violations had occurred and the People’s Representative Council of Indonesia recommended the creation of an ad hoc Human Rights Court, successive administrations have avoided substantive action. Indonesia signed the ICPPED in 2010 but has not ratified it, and state measures have been merely symbolic, reinforcing impunity and public distrust. In this climate of inaction, families of the disappeared have carried the burden of resistance through the Kamisan (derived from the word “Kamis” or Thursday) protests, weekly vigils outside the Presidential Palace transforms personal grief into public memory activism, reminding the nation that democratic consolidation is impossible without accountability.

Conclusion and Recommendations

Enforced disappearance is one of the gravest violations of human rights recognised under international law; a practice that not only harms the victim but also terrorises their families and the community. This act systematically places victims outside the protection of the law, often perpetrated by states, which then denies the victim’s whereabouts. Although a strong international legal framework exists to combat it, primarily through the ICPPED, the Rome Statute, and ARSIWA, its effectiveness is severely hampered by the gap between legal and the political will of states. 

The primary obstacle remains the insufficient universal ratification of the ICPPED and the conflict between international obligations and domestic laws that perpetuate impunity, such as amnesty laws. Consequently, states fail to fulfill their responsibilities to prevent, investigate, and provide reparations. The burden of seeking truth and justice unfairly falls upon victims’ families, who  are subjected to multifaceted suffering of psychological trauma from uncertainty, social isolation, and economic hardship that particularly affects women. The case of Indonesia, particularly the 1998 case and the relentless struggle of the Kamisan protests, exemplifies how a state’s failure to redress past crimes creates a persistent  societal trauma, undermines public trust in legal institutions, and illustrates that without justice, the foundations of a nation’s democracy will remain fragile. 

Breaking the cycle of impunity requires a united effort where states must ratify international treaties and ensure accountability, the international community applies consistent diplomatic pressure, and civil society sustains its vital advocacy and support for victims’ families. To achieve this, states must ratify and fully implement the ICPPED, repeal domestic amnesty laws that perpetuate impunity, strengthen their judicial systems to ensure impartial investigations, and provide full reparations to victims’ families. The international community, particularly the CED, should exert pressure on states that have yet ratified ICPPED to ratify the convention. Finally, at the societal level, the relentless work of civil society through public education, memory initiatives like the Kamisan protests, and grassroots advocacy that provides psychosocial support for families is vital to prevent erasure and sustain pressure for accountability. Taken together, these measures underscore that enforced disappearance is not merely the concern of the victims’ families, but also a collective concern of our society as a whole.