Human dignity denied: Enforced disappearance and the rule of law

Steven Thiru

Human Rights Day offers a meaningful occasion to reflect on global progress in advancing fundamental human rights, particularly as we commemorate the 77th anniversary of the adoption of the Universal Declaration of Human Rights.

It is an opportunity to acknowledge and cherish the inalienable rights that belong to each of us.

One of the most significant milestones this year was the International Court of Justice’s landmark advisory opinion on climate change delivered on 23 July, affirming that states have legally binding obligations to, among others, prevent significant climate harm.

Crucially, the ICJ expressly linked climate change to core human rights, stating that a failure to fulfil these obligations may constitute an “internationally wrongful act”. This represents one of the strongest international legal recognitions to date that inadequate climate action can amount to a human rights violation.

Another critical development occurred on 6 October, when the United Nations Human Rights Council established an independent investigative mechanism for Afghanistan.

Mandated to collect, preserve and analyse evidence of serious international crimes and human rights violations committed in Afghanistan, the mechanism is an essential tool for ensuring accountability for atrocities committed in recent years.

Its creation represents a meaningful commitment by the international community to uphold justice, prevent impunity, and protect the rights of Afghan civilians, especially women, children and other vulnerable communities.

Progress was made in strengthening protections for older people. In April 2025, the UN Human Rights Council launched an initiative to draft a legally binding international convention dedicated to their rights, aimed at addressing longstanding gaps in international human rights law and codifying protections against age-based discrimination.

It is also worth noting that on 26 January 2024, the ICJ issued provisional measures in the case of South Africa v Israel, ordering steps to prevent acts that could amount to genocide in Gaza, highlighting the court’s ongoing role in protecting human rights.

Despite these advances, grave human rights violations persist. Among the most egregious is enforced disappearance, a practice that inflicts devastating and lasting harm on individuals, families and societies worldwide.

The crime of disappearance

Enforced disappearance is a heinous practice and a direct affront to human dignity and the rule of law. It strips a person of legal protection, inflicts immeasurable suffering on families, and instils fear across entire communities.

The Declaration on the Protection of All Persons from Enforced Disappearance (General Assembly Resolution 47/133, 18 December 1992) defines enforced disappearance as the deprivation of liberty by state authorities or those acting on their behalf or with their support or acquiescence, followed by a refusal to disclose the person’s fate or whereabouts, placing the individual outside the protection of the law.

The global scale of the problem is staggering. Between May 2024 and May 2025 alone, the UN working group on enforced or involuntary disappearances transmitted 1,278 new cases to 38 states.

Since its establishment in 1980, it has transmitted 62,904 cases, yet 49,664 cases across 100 states remain unresolved – meaning tens of thousands of families continue to live in anguish, without answers or closure.

These figures reflect a systemic human rights crisis that demands urgent, coordinated and resolute action. Human Rights Day compels renewed attention to this ongoing calamity.

Enforced disappearance violates a wide spectrum of rights recognised in the Universal Declaration of Human Rights, including:

Rights to life, liberty security, and freedom from abuse (Articles 3, 4, 5, 9 and 13): Victims face arbitrary deprivation of liberty, and the risk of torture or death. In addition, the UN office of the high commissioner for human rights has recognised that enforced disappearance “can overlap with contemporary forms of slavery”, exposing victims to exploitation, forced labour, and other conditions resembling slavery.

Rights to legal protection and justice (Articles 6, 7, 8, 10 and 11): Victims are cut off from the protection of the law, due process and remedies. They are held without charge or trial, thus eroding the rule of law.

Rights concerning family, privacy and personal life (Articles 12, 16 and 17): Families suffer profound disruption, uncertainty and loss, while victims cannot safeguard their homes or property.

Rights to expression, association and participation (Articles 19 and 20): Enforced disappearance is often used to silence dissent, target activists and suppress civil society participation.

Rights to work, welfare and social wellbeing (Articles 23, 24, 25 and 26): Victims and their families lose access to livelihoods, health care, adequate living conditions and education.

Overall human dignity and the international human rights order (Articles 1, 28 and 30): Enforced disappearance strikes at the core of human dignity, and undermines the entire framework of rights envisioned by the Universal Declaration of Human Rights.

Human Rights Day must serve not only for reflection, but also for renewed demands for accountability and the reaffirmation of our collective duty to ensure such violations find no place in any society.

Accountability through courts

Two pivotal cases before the Inter-American Court of Human Rights in the late 1980s shaped the jurisprudential framework on enforced disappearance.

In the landmark judgment of Velásquez-Rodríguez v Honduras (1988), the court identified three defining elements of enforced disappearance:

• arbitrary deprivation of liberty
• involvement, support, authorisation or acquiescence of the state
• subsequent concealment of the victim’s fate or whereabouts

The court held that enforced disappearance constitutes a multiple and continuous violation of rights, impairing personal liberty, humane treatment, judicial guarantees and, ultimately, the right to life.

Recognising the inherent secrecy of enforced disappearances, the court affirmed that once a pattern of disappearance is established, the burden shifts to the state to prove non-responsibility.

Furthermore, a state incurs responsibility even where private actors commit the initial act, if the state fails to prevent, investigate or act upon the disappearance.

Importantly, the duty to investigate continues until the fate or whereabouts of the victim is fully established, reflecting the ongoing nature of the violation.

In Godínez Cruz v Honduras (1989), the court articulated a pivotal evidentiary principle: a state cannot rely on the victim’s lack of access to evidence as a defence.

This standard is especially vital in enforced disappearance cases, where state authorities often control or conceal the very information needed to prove the violation.

These principles were later reinforced by the court in Blake v Guatemala (1998), where the court held that even non-official groups may be deemed state agents when they operate with the support, supervision, coordination or acquiescence of state institutions.

These doctrinal precepts have been consistently reaffirmed by the court in other cases, including Castillo-Páez v Peru (1997) and Anzualdo Castro v Peru (2009).

Across these authorities, patterns of surveillance, coordinated abduction, denial and persistent concealment have been treated as hallmarks of enforced disappearance and state involvement.

Another instructive case is Román Jaimes v Mexico (Cedaw Communication no. 153/2020), where the committee on the elimination of discrimination against women in 2022 emphasised that the enforced disappearance of women represents one of the most brutal forms of gender-based violence, and search and investigative bodies must adopt a gender perspective.

Enforced disappearance is thus not gender-neutral, and demands gendered legal and institutional responses.

Two recent High Court judgments in Malaysia in November 2025 exemplify the gravity of enforced disappearance and the accountability of the state for failures in protecting fundamental rights.

In the first case, the High Court held the police and government liable for the disappearance of social activist Amri Che Mat. The court found that the authorities had acted unconstitutionally by failing to carry out effective investigations into his disappearance, thereby infringing on his right to life under Article 5(1) of the Federal Constitution of Malaysia.

It awarded his wife, Norhayati Ariffin, special, general, aggravated and exemplary damages, and ordered that investigations be reopened with reporting required regularly, and that implicated officers be reassigned.

In the second case, the High Court decided in favour of the family of Christian pastor Raymond Koh, finding the police and government responsible for his enforced disappearance. The court held the government vicariously liable for negligence, false imprisonment, misfeasance in public office, breach of statutory duty, conspiracy to cause harm, and infringements of constitutional fundamental liberties.

It ordered the government to pay RM10,000 per day (about $2,400) from 13 February 2017, the date of his abduction, until his fate or whereabouts are established, with the sum to be held in trust; and further general, aggravated and exemplary damages. As of the date of judgment, the total damages exceeded RM37m (about $8.9m), making it one of the largest awards of damages in a human rights claim.

The evidence – including video footage of Koh’s abduction and patterns linking his disappearance to that of Amri – clearly demonstrates that these were cases of enforced disappearance: the victims were forcibly taken by agents or persons acting with the support or acquiescence of the state, and their whereabouts were concealed, placing them outside legal protection.

Both cases were decided by Justice Su Tiang Joo, who must be commended for his courageous rulings holding the state and its agents – including the police – categorically responsible for the abduction and disappearance of people.

A judiciary willing to act with courage is imperative if the scourge of enforced disappearance is to be eradicated.

All these decisions underscore the far-reaching repercussions that arise when investigative agencies and the state fail in their constitutional and statutory duties to protect individuals from enforced disappearance and secure the rights to life, liberty and security of persons.

They also highlight that victims and their families are entitled to effective remedies, and that institutional impunity cannot stand.

The courage and perseverance of Norhayati Ariffin and Susanna Liew, Koh’s spouse, in pursuing their cases despite years of uncertainty and unanswered questions, merits public respect and a strong institutional response.

Ensuring justice for the disappeared

It is crucial to recognise that while these judgments represent important milestones, they do not resolve the core injustice. The whereabouts and fate of tens – maybe even hundreds – of thousands of disappeared persons, including Amri and Koh, remain unknown, and full accountability for the state actors who permitted or orchestrated the disappearances has yet to be achieved.

The rulings of the High Court in Malaysia demonstrate the severity of the violations, but they signal the start of a justice process, not the conclusion of decades of impunity.

Immediate and full compliance with the court’s directives is essential. Investigations must be reopened under independent and transparent oversight, implicated officers removed from investigatory teams, and regular public progress reports submitted.

Enforced disappearance is inextricably linked to accountable governance, the rule of law, and the protection of human rights.

The Commonwealth Charter affirms in Article 2 that all member countries are committed to upholding the Universal Declaration of Human Rights, while the Commonwealth (Latimer House) principles on the three branches of government reinforce the need for impartial investigations, state accountability, and ethical conduct in public office.

The legal profession, bar associations and civil society globally have a role to play in advocating against enforced disappearance, exposing systemic failures, supporting victims’ families in their pursuit of justice, and ensuring that human rights principles are applied in practice, not merely on paper.

Lawyers, in particular, must act with courage, pursuing such cases even in the face of political or institutional pressure.

As we observe Human Rights Day 2025, themed “Our everyday essentials”, we are reminded that fundamental human rights – including the rights to life, liberty and security – are the foundations of daily life, and that enforced disappearances represent an egregious denial of these core human rights.

The rule of law, state accountability and the protection of fundamental liberties must remain at the forefront of the public consciousness.

The legal community must continue to champion the rights of the disappeared, giving voice to those who have been silenced and ensuring that justice is neither delayed nor denied.

Impunity compounds the suffering and anguish. Under international human rights law, families and societies have a right to know the truth about what happened. I call on member states to fulfil this responsibility.

– António Guterres, UN Secretary General

The writer records his appreciation to Jaishanker Sadananda, Ananthan Moorthi and Chin Oy Sim for their assistance in preparing this article for publication.

Steven Thiru is the president of the Commonwealth Lawyers Association. He was counsel in Pastor Raymond Koh’s case, together with Gurdial Singh Nijar, Jerald Gomez, Michelle Wong and Annathan Moorthi.

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