Today, on the International Day of the Victims of Enforced Disappearances (IDVED), the International Commission of Jurists (ICJ) once again condemns Egypt and Libya’s use of widespread and systematic enforced disappearances, including as a tool to silence dissent.
البيان باللغة العربية على هذا الرابط
Enforced disappearance is a crime under international law and, the “widespread or systematic practice of enforced disappearance constitutes a crime against humanity”. Enforced disappearances place the disappeared outside the protection of the law and “constitute a particularly aggravated form of arbitrary detention.” In addition, enforced disappearances facilitate the perpetration of other grave human rights violations that constitute crimes under international law, including torture or other ill-treatment and extrajudicial killings, in violation of States’ international human rights obligations. Numerous human rights expert bodies and tribunals, including the UN Human Rights Committee, the African Commission on Human and Peoples’ Rights, and the Inter-American Court of Human Rights have held that enforced disappearance may constitute torture. Moreover, because of the severe suffering they inflict on the loved ones of the disappeared, enforced disappearances may also violate the relatives’ right to be free from torture or other ill-treatment.
The ICJ calls on the Egyptian and Libyan authorities and Libyan armed groups to:
- immediately end the use of enforced disappearance; and
- promptly conduct independent, impartial and effective investigations into all instances of enforced disappearances with a view to ascertaining the fate and whereabouts of the victims and bringing to justice those allegedly responsible.
Egypt
Since the IDVED 2023, the Egyptian authorities have continued to perpetrate enforced disappearances, including of peaceful protestors and journalists, adding to the already shocking figure of 4,253 cases of individuals forcibly disappeared that ECRF documented between 2015 and 2023.
While various articles of the 2014 Constitution and the Penal Code prohibit and criminalize instances of unlawful detention, there is no direct reference to, or explicit criminalization of, “enforced disappearance” in domestic legislation. Egypt’s failure to criminalize enforced disappearances under domestic law has encouraged their perpetration.
Furthermore, while article 54 of the Egyptian Constitution provides that detainees have the right to immediately contact their relatives and legal counsel at the outset of their detention, and have a right to be brought promptly before an investigative authority, the Egyptian law on “Counter-terrorism” has eroded these rights and safeguards. This has led UN Special Procedures mandate-holders to conclude that “the law has codified enforced disappearances.”
Under Article 40 of the “Counter-Terrorism” law, law enforcement authorities, including the Egyptian police and NSA officers, have the power to hold suspects in custody for up to 24 hours, which the Public Prosecutor or other investigative authority may extend up to 28 days if doing so is “deemed necessary to confront the imminent terrorist crime.” Additionally, article 41 of the same law allows the Public Prosecution to limit detainees’ rights to contact a family member and seek the assistance of a lawyer if doing so is deemed to be in “the interests of the investigation”. Consequently, a detainee may be held in incommunicado detention for up to 28 days at the Prosecution’s discretion.
In addition to the failures of its domestic legislative framework, Egypt has fostered the practice of enforced disappearances by failing to investigate complaints, let alone hold alleged perpetrators to account. This is despite Egypt’s claim during its 2019 UN Universal Periodic Review that it had implemented a recommendation to establish an independent authority to investigate allegations of enforced disappearance. In reality, since 2019, the Egyptian authorities have forcibly disappeared thousands of individuals, including those suspected of opposing the government, further cementing an atmosphere of fear and intimidation already widespread in Egyptian society.
Libya
Under the regime of Libya’s former head of State, Muammar Gadhafi (1969-2011), the authorities were already using enforced disappearances to stifle dissidents and crackdown on journalists and human rights defenders. The practice continued after the 2011 uprising and in the aftermath of the conflicts and the split between the two rival administrations based in the West and the East of the country. Both Western and Eastern authorities, as well as affiliated armed groups, persist in resorting to enforced disappearances, including with a view to intimidating and silencing opposition. Victims are regularly detained in secret locations without trial and denied the right to communicate with their families and access legal assistance.
In its most recent report, the Working Group on Enforced and Involuntary Disappearances expressed deep concern regarding reports of arbitrary deprivation of liberty and enforced disappearances of migrants, refugees and asylum seekers in Libya, including women, children and persons with disabilities.
Last year, the Fact-Finding Mission on Libya mandated by the UN Human Rights Council, which operated from June 2020 to April 2023, found that enforced disappearances were not only being committed against migrants, refugees and asylum seekers, but also against Libyans, and constituted crimes against humanity.
The Libyan criminal framework fails to adequately address enforced disappearances as Law No. 10 of 2013, which criminalizes “forced disappearance”, does not fully comply with international human rights law. Furthermore, the Libyan judiciary is hampered by structural weaknesses and a lack of independence, further exacerbated by the considerable influence wielded by armed groups and militias. Moreover, judges and prosecutors have themselves been the target of abuses, including enforced disappearance, thus severely limiting the capacity of the justice system to investigate these crimes effectively and deter perpetrators.
Recommendations
The ICJ calls on Egypt and Libya to:
- Immediately halt all enforced disappearances;
- Promptly, thoroughly, independently and impartially investigate all credible reports of enforced disappearance, and bring to justice State officials, law enforcement officers and members of armed groups suspected of carrying out, ordering, instigating or failing to prevent or punish such crimes committed by their subordinates;
- Invite the Working Group on Enforced or Involuntary Disappearances to conduct country visits, and grant them full cooperation and access to carry out their mission;
- Become a party to the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED);
- Enact a crime of enforced disappearance in domestic law consistent with the definition provided in Article 2 of ICPPED and the preamble of the 1992 Declaration on the Protection of all Persons from Enforced Disappearance;
- Ensure that accurate information on anyone deprived of their liberty, including their transfers and place of detention, be made promptly available to their family members, their legal counsel and to any other persons having a legitimate interest in such information; and
- Ensure that all persons deprived of liberty be released in a manner permitting reliable verification that they have actually been released, and have been released in conditions in which their physical integrity and ability fully to exercise their rights are assured, as required by Article 11 of 1992.
In addition, the ICJ urges the international community to:
- Call on Egypt and Libya to end enforced disappearance and ensure accountability for these crimes; and
- Call on relevant Special Procedures of the UN Human Rights Council and the Office of the High Commissioner for Human Rights to monitor and report on enforced disappearances in Egypt and Libya.