When Is It Enough? Enforced Disappearence and the "Temporal Element"

During the past 30 years different international legal instruments have incorporated a definition of enforced disappearance. While there is a general agreement on three cumulative constitutive elements (deprivation of liberty against the will of the person concerned; involvement of governmental officials, at least indirectly by acquiescence; and refusal to acknowledge the deprivation of liberty or concealment of the fate and whereabouts of the person concerned), some argue that there may be additional constitutive elements, such as a so-called “temporal element”, that is the prolonged duration of the disappearance or the prolonged duration of the placement of the victim outside the protection of the law. In this contribution, international legal instruments and jurisprudence on the matter are analysed. In particular, reference is made to the views rendered in March 2012 by the Human Rights Committee in the case Aboufaied v. Libya and the separate opinions attached by some of the members of the Committee, arguing in favour of the existence of the mentioned “temporal element”. This contribution aims at demonstrating that international human rights law does not require any temporal element to qualify an act that meets the three mentioned constitutive elements as an enforced disappearance.