Tanja Florath | University of Galway (original) (raw)

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Papers by Tanja Florath

Enforced disappearance is a human rights violation, which frequently occurs during armed conflict... more Enforced disappearance is a human rights violation, which frequently occurs during armed conflict. Particularly, in situations of non-international armed conflicts parties to the conflict terrorise the population and suppress political opposition by ‘disappearing’ alleged supporters of the adversary party. State actors as well as non-state actors commit those crimes. While it is recognised and defined as a human rights violations and prohibited by the International Convention for the Protection of All Persons from Enforced Disappearance, International Humanitarian Law (IHL) does not contain an explicit prohibition. Enforced Disappearance is, however, prohibited by International Customary Law. Since IHL does not contain a legal definition of enforced disappearance it will be suggested to incorporate the existing International Human Rights Law (HRL) definition, based upon one concept of parallel applicability. The International Court of Justice developed the lex specialis approach to define the relationship between IHL and HRL, an approach that was further pursued by different authors. Eventually, it was argued, that a flexible understanding of the ‘lex specialis’ theory leads to- wards an approach of harmonisation. Accordingly, both legal regimes complement each other and the HRL definition of enforced disappearance is applicable in armed conflict. Yet, non-state actors are excluded as possible perpetrators in HRL, but accepted in IHL. Hence, the author suggests that the human rights definition of enforced disappearance shall be extended to harmonise with the IHL framework. This proposition results in a modified definition of enforced disappearance in the context of armed conflict, namely a definition that is not state-centred, but includes all parties to the conflict as possible perpetrators. Consequently, it provides the broadest protection possible from enforced disappearance.

Conference Presentations by Tanja Florath

This paper will look at Argentina and Spain and their respective contributions to criminal justic... more This paper will look at Argentina and Spain and their respective contributions to criminal justice in the aftermath of dictatorships. It will argue that Spain – by allowing Argentineans to be tried in front of Spanish courts for crimes committed during the Dirty War at a time when they could not be tried in Argentina due to amnesty laws – extended the limits of criminal responsibility in transitional justice settings. In doing so, Spain contributed to international standard setting regarding the validity of amnesty laws and state’s obligations to prosecute and punish perpetrators of serious human rights violations. In reverse, Spain has come to be confronted with the partly self-created culture of accountability and must respond to Argentina’s extradition requests in regard to persons alleged to have committed torture during the Franco regime. Apparently unwilling to investigate its own past, Spain restricted the applicability of universal jurisdiction in February 2014 and refers to the 1977 Spanish amnesty law to refuse the requested extraditions. This paper argues that Spain’s double standards will not foreclose investigations into domestic human rights violations, as its earlier policy regarding accountability for past atrocities raised high expectations within and outside of the country.

In making this argument, the history of Argentina’s amnesty laws is first outlined, namely the law of due obedience and the full stop law, their repeal by congress and the subsequent Supreme Court decision in the Simón case. Therein the Supreme Court explicitly referred to cases related to atrocities committed during the Dirty War, filed in foreign jurisdictions, as one reason to revoke the amnesty laws. This judgement is at least partially motivated by trials that took place in Spain, such as the Scilingo trial, amongst others. Furthermore, the current proceedings against Muñecas Aguilar and Gonzales Pacheco, based on the inquiry of Argentine Judge Servini will be introduced. It will be argued that, regardless of the outcome of the extradition request, Spain will have to consider alternative strategies in dealing with its violent past to prevent further extradition requests and extra-territorial proceedings against nationals abroad.

The final section will explore the influence of the Spanish diaspora in Argentina and the Argentine diaspora in Spain. A significant number of Spaniards sought exile in Argentina after the end of the Spanish civil war, with the clear intention of returning after the end of Franco’s regime. Not anticipating the long duration of the Franco regime, they eventually settled and had children. Conversely, many Argentineans left Argentina during the Dirty War and settled in Spain. Members of both communities suffered persecution, human rights violations and mourn disappeared relatives. The majority have dual citizenship and follow the political developments of their countries of origin with interest. Based on their participation, claims against Spanish perpetrators could be pursued in Argentine courts. This particular aspect of Argentine-Spanish relations is likely to place further pressure on Spain to comply with international standards of accountability that the country itself has largely contributed to establishing.

This paper introduces a comparison between Argentina and the Philippines in their struggle agains... more This paper introduces a comparison between Argentina and the Philippines in their struggle against enforced disappearances. Both countries had been former Spanish colonies, faced military dictatorships that ended in the 1980s, have a vibrant civil society and democratically elected governments and offer constitutional guarantees for habeas corpus and writ of amparo respectively. Their constitutions assure civil liberties, and enforced disappearance is a codified crime in both jurisdictions. Finally, both countries deal with significant numbers of forcibly disappeared persons. Yet, while Argentina faces its historical legacy and thousands of ‘disappearances’ that began during its violent past, in the Philippines enforced disappearances still occur on a regular basis. While Argentina is a leading advocate for the International Convention for the Protection of All Persons from Enforced Disappearance, the Philippines have not yet signed this treaty.
This paper will look at the different developments that followed the dictatorships in both countries and show that Argentina pioneered some transitional justice mechanisms – like the truth trials and a national database for the identification of disappeared children to name just two – and successfully transitioned into a democratic state based on the rule of law. The Philippines, however, somehow failed in its transition. While the struggle against enforced disappearances became a crucial part of Argentina’s transitional justice process, the Philippines took a long time to approach this issue with a national law in 2012.
This paper argues that the different outcomes in respect to protection from and prevention of enforced disappearances in Argentina and the Philippines can be traced back to distinctive legal cultures and different perceptions of the rule of law. While Argentina’s working class expects equal access to the judiciary and indiscriminate legal protection, farmers in the Philippines perceive the law as a tool to maintain power by the ruling elite. This paper will demonstrate that although Argentina and the Philippines have similar national legal frameworks, bill of rights protection and governance structures, both countries follow different executive approaches when it comes to the implementation of their respective legal frameworks and face differing expectations of their citizens in respect to the rule of law.

Los desaparecidos (the ‘disappeared’) gained sad notoriety during the dictatorships in Latin Amer... more Los desaparecidos (the ‘disappeared’) gained sad notoriety during the dictatorships in Latin America in the 1970s and 1980s, when security forces abducted perceived political opponents, kept them in clandestine detention camps, denied their existence, killed most of them, and ‘disappeared’ their bodies. Bereaved family members never stopped looking for their ‘disappeared’ loved ones. They started to organize their struggle, which transformed them into significant and influential human rights advocates. Born in that context, victims’ organisation like the Argentinean Madres de Plaza de Mayo became known internationally and initiated a campaign for the outlawing of enforced disappearance. Their successful efforts resulted in mechanisms like the United Nations Working Group on Enforced and Involuntary Disappearances and eventually the International Convention for the Protection of All Persons from Enforced Disappearance (ICED), which entered into force in December 2012.

In a first step my doctoral research looks at the Latin American origins of the international legal framework on enforced disappearances, in an attempt to assess to which degree the specific context shaped our legal understanding. In other words, could the Latin American origin of the international legal regime on enforced disappearance hamper its universal applicability? To answer this question, I must look at the legal standards that arose from more than thirty years of reporting, monitoring, jurisprudence and I will introduce accepted concepts like the recognition of family members as victims, the reversal of the burden of proof in human rights proceedings, the idea of a continuing violations and its consequences, and so forth.

In a second step, my doctoral research looks at contemporary Asia, a region that is unique due to the lack of a regional human rights instrument and/or institution. Thousands of cases of enforced disappearances are reported every year in this part of the world. My research will focus on the member states of the Association of Southeast Asian Nations (ASEAN), as ASEAN took the first steps towards regionalization of human rights with the establishment of the Intergovernmental Commission on Human Rights in October 2009 and the proclamation of the ASEAN Human Rights Declaration in November 2012. I will look at the context of and rationale behind enforced disappearances in ASEAN states and analyse whether the aforementioned international standards are suitable in the regional context and likely to be successful. More specifically, I will try to determine why enforced disappearance occur in Southeast Asia and compare their background with that of the Latin American experience. Based on this comparison, I will assess whether ICAD is adaptable for the Southeast Asian context or if national and regional initiatives would be more adequate. It is planned to conclude my doctoral research with an assessment of the universal adaptability of the Convention on Enforced Disappearances and make recommendations for possible modifications to take different political circumstances, legal cultures and Asian values into account.

Los desaparecidos (the ‘disappeared’) gained sad notoriety during the dictatorships in Latin Amer... more Los desaparecidos (the ‘disappeared’) gained sad notoriety during the dictatorships in Latin America in the 1970s and 1980s, when security forces abducted perceived political opponents, kept them in clandestine detention camps, denied their existence, killed most of them, and ‘disappeared’ their bodies. Bereaved family members never stopped looking for their ‘disappeared’ loved ones. They started to organize their struggle, which transformed them into significant and influential human rights advocates. Born in that context, victims’ organisation like the Argentinean Madres de Plaza de Mayo became known internationally and initiated a campaign for the outlawing of enforced disappearance. Their successful efforts resulted in mechanisms like the United Nations Working Group on Enforced and Involuntary Disappearances and eventually the International Convention for the Protection of All Persons from Enforced Disappearance (ICED), which entered into force in December 2012.

In a first step my doctoral research looks at the Latin American origins of the international legal framework on enforced disappearance, in an attempt to assess to which degree the specific context shaped our legal understanding. In other words, could the Latin American origin of the international legal regime on enforced disappearance hamper its universal applicability? To answer this question, I must look at the legal standards that arose from more than thirty years of reporting, monitoring, and jurisprudence and I will introduce accepted concepts like the recognition of family members as victims, the reversal of the burden of proof in human rights proceedings, the idea of a continuing violations and its consequences, and so forth.

In a second step, my doctoral research looks at contemporary Asia, a region that is unique due to the lack of a regional human rights instrument and/or institution. Thousands of cases of enforced disappearances are reported every year in this part of the world. My research will focus on the member states of the Association of Southeast Asian Nations (ASEAN), as ASEAN took the first steps towards regionalization of human rights with the establishment of the Intergovernmental Commission on Human Rights in October 2009 and the proclamation of the ASEAN Human Rights Declaration in November 2012. I will look at the context of and rationale behind enforced disappearances in ASEAN states and analyse whether the aforementioned international standards are suitable in the regional context and likely to be successful.

More specifically, I will try to determine why enforced disappearances occur in Southeast Asia and compare their background with that of the Latin American experience. Based on this comparison, I will assess whether ICED is adaptable for the Southeast Asian context or if national and regional initiatives would be more adequate. It is planned to conclude my doctoral research with an assessment of the universal applicability of the Convention on Enforced Disappearances and make recommendations for possible modifications to take different political circumstances, legal cultures and values into account.

This paper will analyse the interdependence of international humanitarian law (IHL) and internati... more This paper will analyse the interdependence of international humanitarian law (IHL) and international human rights law (IHRL) in regard to enforced disappearances.

Lebanon will serve as a case study. In Lebanon approximately 17,000 people went missing during the Civil War. A joint campaign by numerous victims’ organizations demands that the government investigate the fate of the missing persons. Some of them went missing during combat or in order to avoid combat action. Some have been taken into detention by the Syrian armed forces and never returned. Civil society generally refers to them as the ‘disappeared’.

Enforced disappearance is a human rights violation that occurs during peacetime and during armed conflict. Yet, IHL only refers to missing persons and includes all people that have not returned home after the cessation of hostilities for whatever reason. Thus, ‘missing person’ has become a broader legal category than enforced disappearance. This paper attempts to answer the question whether a missing person can legally be transformed into a case of enforced disappearance.

According to the International Court of Justice IHRL is applicable at all times, while IHL is applicable during the times of armed conflict. In order to reconcile both legal regimes, the Court introduced the concept of parallel applicability and lex specialis. In my presentation I will apply the Court’s concept to the situation in Lebanon and argue that overlapping state obligations exist. Both legal regimes compel the government to investigate the fate of the missing persons. Hence, I will argue that it is irrelevant for the victim’s claims, whether a person is missing according to IHL or ‘disappeared’ according to IHRL.

Since the arrest of Augusto Pinochet and the adoption of the Rome Statue of the International Cri... more Since the arrest of Augusto Pinochet and the adoption of the Rome Statue of the International Criminal Court in 1998, prosecution and criminal justice have played a dominant role in the encounter of human rights violations. Numerous UN reports on the impact of impunity and the duty to prosecute have been published and deterrence through criminal law became a driving force in human rights protection. Yet, international human rights law and international criminal law are two different legal regimes with distinctive functions and objectives.

This paper will use the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) to demonstrate the crucial distinction between the reactive nature of international criminal law and the originally proactive nature of international human rights law. While criminal law targets the perpetrators in an attempt to prevent future human rights violations through means of deterrence, human rights law shall ensure that every individual can enjoy his or her human rights at all times. The latter compels states to take proactive measures, which extend beyond the pure criminalisation of a human rights violation.

Using enforced disappearance as an example for human rights protection will demonstrate that criminalisation and prosecution could even be counterproductive, particularly in cases where the enforced disappearance is still on going, and the perpetrator, based on his procedural rights, refused to reveal the truth about the disappeared victim. In this context, the Inter-American Court on Human Rights ordered several states to ensure effective habeas corpus mechanism and legal access to information about the victims for family members or representatives of the victim. The ICPPED internalized this position and presents a broad range of measures that ratifying states have to implement in order to shift the focus from ‘after to deed’ to ‘before the deed’.

Teaching Documents by Tanja Florath

Enforced disappearance is a human rights violation, which frequently occurs during armed conflict... more Enforced disappearance is a human rights violation, which frequently occurs during armed conflict. Particularly, in situations of non-international armed conflicts parties to the conflict terrorise the population and suppress political opposition by ‘disappearing’ alleged supporters of the adversary party. State actors as well as non-state actors commit those crimes. While it is recognised and defined as a human rights violations and prohibited by the International Convention for the Protection of All Persons from Enforced Disappearance, International Humanitarian Law (IHL) does not contain an explicit prohibition. Enforced Disappearance is, however, prohibited by International Customary Law. Since IHL does not contain a legal definition of enforced disappearance it will be suggested to incorporate the existing International Human Rights Law (HRL) definition, based upon one concept of parallel applicability. The International Court of Justice developed the lex specialis approach to define the relationship between IHL and HRL, an approach that was further pursued by different authors. Eventually, it was argued, that a flexible understanding of the ‘lex specialis’ theory leads to- wards an approach of harmonisation. Accordingly, both legal regimes complement each other and the HRL definition of enforced disappearance is applicable in armed conflict. Yet, non-state actors are excluded as possible perpetrators in HRL, but accepted in IHL. Hence, the author suggests that the human rights definition of enforced disappearance shall be extended to harmonise with the IHL framework. This proposition results in a modified definition of enforced disappearance in the context of armed conflict, namely a definition that is not state-centred, but includes all parties to the conflict as possible perpetrators. Consequently, it provides the broadest protection possible from enforced disappearance.

This paper will look at Argentina and Spain and their respective contributions to criminal justic... more This paper will look at Argentina and Spain and their respective contributions to criminal justice in the aftermath of dictatorships. It will argue that Spain – by allowing Argentineans to be tried in front of Spanish courts for crimes committed during the Dirty War at a time when they could not be tried in Argentina due to amnesty laws – extended the limits of criminal responsibility in transitional justice settings. In doing so, Spain contributed to international standard setting regarding the validity of amnesty laws and state’s obligations to prosecute and punish perpetrators of serious human rights violations. In reverse, Spain has come to be confronted with the partly self-created culture of accountability and must respond to Argentina’s extradition requests in regard to persons alleged to have committed torture during the Franco regime. Apparently unwilling to investigate its own past, Spain restricted the applicability of universal jurisdiction in February 2014 and refers to the 1977 Spanish amnesty law to refuse the requested extraditions. This paper argues that Spain’s double standards will not foreclose investigations into domestic human rights violations, as its earlier policy regarding accountability for past atrocities raised high expectations within and outside of the country.

In making this argument, the history of Argentina’s amnesty laws is first outlined, namely the law of due obedience and the full stop law, their repeal by congress and the subsequent Supreme Court decision in the Simón case. Therein the Supreme Court explicitly referred to cases related to atrocities committed during the Dirty War, filed in foreign jurisdictions, as one reason to revoke the amnesty laws. This judgement is at least partially motivated by trials that took place in Spain, such as the Scilingo trial, amongst others. Furthermore, the current proceedings against Muñecas Aguilar and Gonzales Pacheco, based on the inquiry of Argentine Judge Servini will be introduced. It will be argued that, regardless of the outcome of the extradition request, Spain will have to consider alternative strategies in dealing with its violent past to prevent further extradition requests and extra-territorial proceedings against nationals abroad.

The final section will explore the influence of the Spanish diaspora in Argentina and the Argentine diaspora in Spain. A significant number of Spaniards sought exile in Argentina after the end of the Spanish civil war, with the clear intention of returning after the end of Franco’s regime. Not anticipating the long duration of the Franco regime, they eventually settled and had children. Conversely, many Argentineans left Argentina during the Dirty War and settled in Spain. Members of both communities suffered persecution, human rights violations and mourn disappeared relatives. The majority have dual citizenship and follow the political developments of their countries of origin with interest. Based on their participation, claims against Spanish perpetrators could be pursued in Argentine courts. This particular aspect of Argentine-Spanish relations is likely to place further pressure on Spain to comply with international standards of accountability that the country itself has largely contributed to establishing.

This paper introduces a comparison between Argentina and the Philippines in their struggle agains... more This paper introduces a comparison between Argentina and the Philippines in their struggle against enforced disappearances. Both countries had been former Spanish colonies, faced military dictatorships that ended in the 1980s, have a vibrant civil society and democratically elected governments and offer constitutional guarantees for habeas corpus and writ of amparo respectively. Their constitutions assure civil liberties, and enforced disappearance is a codified crime in both jurisdictions. Finally, both countries deal with significant numbers of forcibly disappeared persons. Yet, while Argentina faces its historical legacy and thousands of ‘disappearances’ that began during its violent past, in the Philippines enforced disappearances still occur on a regular basis. While Argentina is a leading advocate for the International Convention for the Protection of All Persons from Enforced Disappearance, the Philippines have not yet signed this treaty.
This paper will look at the different developments that followed the dictatorships in both countries and show that Argentina pioneered some transitional justice mechanisms – like the truth trials and a national database for the identification of disappeared children to name just two – and successfully transitioned into a democratic state based on the rule of law. The Philippines, however, somehow failed in its transition. While the struggle against enforced disappearances became a crucial part of Argentina’s transitional justice process, the Philippines took a long time to approach this issue with a national law in 2012.
This paper argues that the different outcomes in respect to protection from and prevention of enforced disappearances in Argentina and the Philippines can be traced back to distinctive legal cultures and different perceptions of the rule of law. While Argentina’s working class expects equal access to the judiciary and indiscriminate legal protection, farmers in the Philippines perceive the law as a tool to maintain power by the ruling elite. This paper will demonstrate that although Argentina and the Philippines have similar national legal frameworks, bill of rights protection and governance structures, both countries follow different executive approaches when it comes to the implementation of their respective legal frameworks and face differing expectations of their citizens in respect to the rule of law.

Los desaparecidos (the ‘disappeared’) gained sad notoriety during the dictatorships in Latin Amer... more Los desaparecidos (the ‘disappeared’) gained sad notoriety during the dictatorships in Latin America in the 1970s and 1980s, when security forces abducted perceived political opponents, kept them in clandestine detention camps, denied their existence, killed most of them, and ‘disappeared’ their bodies. Bereaved family members never stopped looking for their ‘disappeared’ loved ones. They started to organize their struggle, which transformed them into significant and influential human rights advocates. Born in that context, victims’ organisation like the Argentinean Madres de Plaza de Mayo became known internationally and initiated a campaign for the outlawing of enforced disappearance. Their successful efforts resulted in mechanisms like the United Nations Working Group on Enforced and Involuntary Disappearances and eventually the International Convention for the Protection of All Persons from Enforced Disappearance (ICED), which entered into force in December 2012.

In a first step my doctoral research looks at the Latin American origins of the international legal framework on enforced disappearances, in an attempt to assess to which degree the specific context shaped our legal understanding. In other words, could the Latin American origin of the international legal regime on enforced disappearance hamper its universal applicability? To answer this question, I must look at the legal standards that arose from more than thirty years of reporting, monitoring, jurisprudence and I will introduce accepted concepts like the recognition of family members as victims, the reversal of the burden of proof in human rights proceedings, the idea of a continuing violations and its consequences, and so forth.

In a second step, my doctoral research looks at contemporary Asia, a region that is unique due to the lack of a regional human rights instrument and/or institution. Thousands of cases of enforced disappearances are reported every year in this part of the world. My research will focus on the member states of the Association of Southeast Asian Nations (ASEAN), as ASEAN took the first steps towards regionalization of human rights with the establishment of the Intergovernmental Commission on Human Rights in October 2009 and the proclamation of the ASEAN Human Rights Declaration in November 2012. I will look at the context of and rationale behind enforced disappearances in ASEAN states and analyse whether the aforementioned international standards are suitable in the regional context and likely to be successful. More specifically, I will try to determine why enforced disappearance occur in Southeast Asia and compare their background with that of the Latin American experience. Based on this comparison, I will assess whether ICAD is adaptable for the Southeast Asian context or if national and regional initiatives would be more adequate. It is planned to conclude my doctoral research with an assessment of the universal adaptability of the Convention on Enforced Disappearances and make recommendations for possible modifications to take different political circumstances, legal cultures and Asian values into account.

Los desaparecidos (the ‘disappeared’) gained sad notoriety during the dictatorships in Latin Amer... more Los desaparecidos (the ‘disappeared’) gained sad notoriety during the dictatorships in Latin America in the 1970s and 1980s, when security forces abducted perceived political opponents, kept them in clandestine detention camps, denied their existence, killed most of them, and ‘disappeared’ their bodies. Bereaved family members never stopped looking for their ‘disappeared’ loved ones. They started to organize their struggle, which transformed them into significant and influential human rights advocates. Born in that context, victims’ organisation like the Argentinean Madres de Plaza de Mayo became known internationally and initiated a campaign for the outlawing of enforced disappearance. Their successful efforts resulted in mechanisms like the United Nations Working Group on Enforced and Involuntary Disappearances and eventually the International Convention for the Protection of All Persons from Enforced Disappearance (ICED), which entered into force in December 2012.

In a first step my doctoral research looks at the Latin American origins of the international legal framework on enforced disappearance, in an attempt to assess to which degree the specific context shaped our legal understanding. In other words, could the Latin American origin of the international legal regime on enforced disappearance hamper its universal applicability? To answer this question, I must look at the legal standards that arose from more than thirty years of reporting, monitoring, and jurisprudence and I will introduce accepted concepts like the recognition of family members as victims, the reversal of the burden of proof in human rights proceedings, the idea of a continuing violations and its consequences, and so forth.

In a second step, my doctoral research looks at contemporary Asia, a region that is unique due to the lack of a regional human rights instrument and/or institution. Thousands of cases of enforced disappearances are reported every year in this part of the world. My research will focus on the member states of the Association of Southeast Asian Nations (ASEAN), as ASEAN took the first steps towards regionalization of human rights with the establishment of the Intergovernmental Commission on Human Rights in October 2009 and the proclamation of the ASEAN Human Rights Declaration in November 2012. I will look at the context of and rationale behind enforced disappearances in ASEAN states and analyse whether the aforementioned international standards are suitable in the regional context and likely to be successful.

More specifically, I will try to determine why enforced disappearances occur in Southeast Asia and compare their background with that of the Latin American experience. Based on this comparison, I will assess whether ICED is adaptable for the Southeast Asian context or if national and regional initiatives would be more adequate. It is planned to conclude my doctoral research with an assessment of the universal applicability of the Convention on Enforced Disappearances and make recommendations for possible modifications to take different political circumstances, legal cultures and values into account.

This paper will analyse the interdependence of international humanitarian law (IHL) and internati... more This paper will analyse the interdependence of international humanitarian law (IHL) and international human rights law (IHRL) in regard to enforced disappearances.

Lebanon will serve as a case study. In Lebanon approximately 17,000 people went missing during the Civil War. A joint campaign by numerous victims’ organizations demands that the government investigate the fate of the missing persons. Some of them went missing during combat or in order to avoid combat action. Some have been taken into detention by the Syrian armed forces and never returned. Civil society generally refers to them as the ‘disappeared’.

Enforced disappearance is a human rights violation that occurs during peacetime and during armed conflict. Yet, IHL only refers to missing persons and includes all people that have not returned home after the cessation of hostilities for whatever reason. Thus, ‘missing person’ has become a broader legal category than enforced disappearance. This paper attempts to answer the question whether a missing person can legally be transformed into a case of enforced disappearance.

According to the International Court of Justice IHRL is applicable at all times, while IHL is applicable during the times of armed conflict. In order to reconcile both legal regimes, the Court introduced the concept of parallel applicability and lex specialis. In my presentation I will apply the Court’s concept to the situation in Lebanon and argue that overlapping state obligations exist. Both legal regimes compel the government to investigate the fate of the missing persons. Hence, I will argue that it is irrelevant for the victim’s claims, whether a person is missing according to IHL or ‘disappeared’ according to IHRL.

Since the arrest of Augusto Pinochet and the adoption of the Rome Statue of the International Cri... more Since the arrest of Augusto Pinochet and the adoption of the Rome Statue of the International Criminal Court in 1998, prosecution and criminal justice have played a dominant role in the encounter of human rights violations. Numerous UN reports on the impact of impunity and the duty to prosecute have been published and deterrence through criminal law became a driving force in human rights protection. Yet, international human rights law and international criminal law are two different legal regimes with distinctive functions and objectives.

This paper will use the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) to demonstrate the crucial distinction between the reactive nature of international criminal law and the originally proactive nature of international human rights law. While criminal law targets the perpetrators in an attempt to prevent future human rights violations through means of deterrence, human rights law shall ensure that every individual can enjoy his or her human rights at all times. The latter compels states to take proactive measures, which extend beyond the pure criminalisation of a human rights violation.

Using enforced disappearance as an example for human rights protection will demonstrate that criminalisation and prosecution could even be counterproductive, particularly in cases where the enforced disappearance is still on going, and the perpetrator, based on his procedural rights, refused to reveal the truth about the disappeared victim. In this context, the Inter-American Court on Human Rights ordered several states to ensure effective habeas corpus mechanism and legal access to information about the victims for family members or representatives of the victim. The ICPPED internalized this position and presents a broad range of measures that ratifying states have to implement in order to shift the focus from ‘after to deed’ to ‘before the deed’.