Table of contents
Element
Element 7 constitutes the circumstantial element accompanying Elements 3(b), 4(b) and 5(b).
One should pay attention that Elements 6 and 7 differ in one important aspect: the acquiescence does not suffice to fulfil the requirement of Element 7 whereas it does for Element 6. This implies that the standard is lower concerning the implication of a State or political organization in the arrest, detention or abduction than it is in the refusal to acknowledge or to give information.
In Kurt v. Turkey (Kurt v. Turkey, Application No. 24276/94 , Judgment (Merits and Just Satisfaction)(European Court of Human Rights), 25 May 1998, 25 May 1998, para. 121), the ECtHR creates a presumption of responsibility on the part of the authorities since the victim was last seen in the custody of security forces:
However, if circumstantial evidence and presumptions have been used in human rights tribunal decisions, one should be aware that this may not be the case in the context of a criminal proceeding at the ICC. Indeed, as it was said in the Blake v. Guatemala case (Blake v. Guatemala, Petition No. 11.219, Judgment (Merits), Inter-American Court of Human Rights, 24 January 1998,para.50): "[ ] the criteria for evaluation of evidence before an international human rights tribunal are broader, since determination of a State's international responsibility for human rights violation bestows greater flexibility on the Tribunal in assessing evidence delivered to it on the pertinent facts, on the basis of logic and experience ( .)". Furthermore, it is very important to keep in mind that the shifting of the burden of proof is strictly prohibited under the ICC Statute.
P.44. Evidence of State authorities refusal to acknowledge that deprivation of freedom.
P.44.1. Evidence of the State authorities denial of arrest.
A. Legal source/authority and evidence:
"The Commission considers that forced disappearance has occurred when a person is arrested by State agents or with the acquiescence of same, with or without orders from a competent authority, and this arrest is then denied and no information is made available as to the destination or whereabouts of the detainee."
P.44.2. Evidence of the State authorities denial of detention.
A. Legal source/authority and evidence:
?i?ek v. Turkey, Application no. 25704/94, Judgment (Merits and Just Satisfaction)(European Court of Human Rights), 27 February 2001, para. 32:
"32. On July 1994 Feride Cicek filed two petitions with the Diyarbakir Public Prosecutor asking whether her brothers, who had been taken away by the security forces on 10 May 1944, were actually held in custody. She only received a verbal reply to the effect that they were not in custody. The same day she filled another petition with the public prosecutor as regards the disappearance of her nephew, Cayan Cicek. Again, verbally, she was told that Cayan was not in custody."
Fairén-Garbi and Sol?s-Corrales v. Honduras, Petition No. 7951, Judgment, Inter-American Court of Human Rights, 15 March 1989, para. 153(d)(iv):
"153 [ ] (d) [ ] (iv) When queried by relatives, lawyers and persons or entities interested in the protection of human rights, or by judges charged with executing writs of habeas corpus, the authorities systematically denied any knowledge of the detentions or the whereabouts or fate of the victims. That attitude was seen even in the cases of persons who later reappeared in the hands of the same authorities who had systematically denied holding them or knowing their fate."
A. Legal source/authority and evidence:
Taş v. Turkey, Application No. 24396/94, Judgment (Merits and Just Satisfaction)(European Court of Human Rights), 14 November 2000, para. 85:
"85. [ ]The authorities have failed to provide a plausible explanation for the whereabouts and fate of the applicants son after that date."
Kurt v. Turkey, Application No. 24276/94 , Judgment (Merits and Just Satisfaction)(European Court of Human Rights), 25 May 1998, para. 128:
"128. The Court concludes that the authorities have failed to offer any credible and substantiated explanation for the whereabouts and fate of the applicants son after he was detained in the village and that no meaningful investigation was conducted into the applicants insistence that he was in detention and that she was concerned for his life."
Fairén-Garbi and Sol?s-Corrales v. Honduras, Petition No. 7951, Judgment, Inter-American Court of Human Rights, 15 March 1989, para. 153(d)(iv):
"153 [ ](d)[ ](iv)When queried by relatives, lawyers and persons or entities interested in the protection of human rights, or by judges charged with executing writs of habeas corpus, the authorities systematically denied any knowledge of the detentions or the whereabouts or fate of the victims. That attitude was seen even in the cases of persons who later reappeared in the hands of the same authorities who had systematically denied holding them or knowing their fate."
"The Commission considers that forced disappearance has occurred when a person is arrested by State agents or with the acquiescence of same, with or without orders from a competent authority, and this arrest is then denied and no information is made available as to the destination or whereabouts of the detainee."
The expansion of the definition of enforced disappearance to include "the authorization, support or acquiescence [ ] of a political organization" is, according to Christopher K. Hall, a "major departure from existing international law" since under international law this crime can only be committed by State agents or with their consent or acquiescence. Hence, this new addition will "require further clarification in the light of the requirement that those carrying out the enforced disappearance must intend to remove the victims from the protection of the law". (Christopher K. Hall in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, article 7, para. 124).
Since the inclusion of the participation of a political organization is a novelty in international law, the ICC judges will develop the jurisprudence on this question.
