“Now You see, Now You Don’t: The Duty of the State to Investigate and Prosecute ‘Disappearances and Extra Judicial Executions

Jackson N. Maogoto, University of Newcastlle

Abstract

This article sets out to explore the duty of a state to punish “disappearances” and extra-judicial executions. Section II will introduce generally the spectre of forced “disappearances” and extra-judicial executions as conceived by Hitler (arguably the architect of the institutionalisation of this atrocious practice by the state) and outline a brief commentary on the scourge. Section III will define “disappearances” and extra-judicial executions. It will further discuss the attractiveness of this form of human rights violation as an instrument of governmental policy to states. Section IV will discuss developed principles of international law, both customary and conventional, that outlaw “disappearances” and extra-judicial executions and the significant obligations on states in this regard. It will posit the centrality evident in human rights instruments toward specifying a duty to prosecute grave violations of physical integrity with specific focus on “disappearances” and extra-judicial executions. It will mention the framework through which these are addressed. Section V will focus on the duty of states to punish perpetrators within the government for this evil. It will discuss the important conclusion on conventional law that human rights treaties do not explicitly require states parties to prosecute violations; nonetheless, they impose a general duty to investigate allegations of “disappearances” and extra-legal killings, and to prosecute those responsible. A state's complete failure to punish repeated or notorious instances of such offences violates its obligations under international law. As such, these duties represent a departure from the traditional approach of international human rights law. In rounding up the discussion, the article will also address the vexing moral, legal and political dilemmas that amnesty for “disappearances” and extra-judicial executions poses.