Unpacking the Differences Between Enforced Disappearances and Missing Persons in International Law

By Wimal Navaratnam, Human Rights Activist

Editor’s Note

The distinction between “enforced disappearances” and “missing persons” is not merely academic; it is a fundamental issue of justice for families, survivors, and entire communities, particularly in contexts marked by political repression or conflict, such as the Tamil regions of Sri Lanka. Misunderstandings or conflation of these terms can undermine victim rights, enable impunity, and erode international accountability. This report was prepared with reference to best practices in human rights reporting, prioritizing clarity, evidentiary rigor, the voices of affected communities, and actionable recommendations for stakeholders1.

Disclaimer

This report is for informational and analytical purposes only. It provides a synthesis of publicly available legal sources, treaties, case law, advocacy reports, and commentary as of August 2025. While every effort has been made to ensure accuracy and balance, the content does not constitute formal legal advice and does not guarantee any particular outcome in future legal proceedings. Readers should seek professional counsel or official guidance before making decisions or initiating actions based on this research.

Edited By: Wimal Navaratanam,
Human Rights Activist,
Email: tamilolicanada@gmail.com
August 18, 2025 

Methodology

The present report was compiled through systematic desk research carried out in August 2025, drawing on international legal treaties, conventions, the jurisprudence of global and regional courts, United Nations documentation, ICRC fact sheets, authoritative secondary analysis, advocacy platform materials, and recent case studies with a focus on the Sri Lankan Tamil context. Multiple web sources, including official treaty texts, legal commentary, and victim accounts, were consulted to ensure comprehensive coverage and cross-verification.

Reporting standards align with guidelines from leading United Nations human rights monitoring manuals, emphasizing: factual accuracy; clear distinction between analysis and evidence; balanced coverage of diverse perspectives; use of structural, process, and outcome indicators in assessing state obligations; and inclusion of actionable recommendations tailored to specific audiences, including the Tamil Diaspora, local leaders, and broader human rights professionals23.

 Disappeared Yet Distinct:

Unpacking the Differences Between Enforced Disappearances and Missing Persons in International Law

Why Distinguishing These Concepts Matters for Truth, Accountability, and Justice-Insights for the Tamil Community and Global Human Rights Advocates

Introduction

The anguish of not knowing the fate or whereabouts of a loved one is among the most acute and enduring forms of human suffering, with profound legal, psychological, and societal ramifications. In situations of war, repression, or disaster, people may vanish under circumstances that are ambiguous, criminal, or, at times, politically motivated. International law has developed two primary categories to address and respond to these phenomena: enforced disappearances and missing persons.

Understanding the technical, legal, and practical differences between these two categories is critically important for victims, survivors, advocates, policymakers, and especially for communities like the Tamils of Sri Lanka, who have faced mass disappearances and have long fought for truth and accountability. The distinction affects the obligations of states, the rights and remedies available to victims and families, and the mechanisms through which justice may (or may not) be achieved.

This report seeks to unpack these differences in detail, assess the relevant legal frameworks, examine enforcement and protection mechanisms, and provide practical insights for local and global advocates.

Enforced Disappearance: Definition and Elements

Under international law, enforced disappearance is a specific, legally defined phenomenon associated with grave human rights violations. According to Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED/ICED/ICPPED):

“Enforced disappearance” is:

the arrest, detention, abduction, or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law4.

There are three essential cumulative elements:

1.        Deprivation of Liberty: An individual is arrested, detained, abducted, or otherwise deprived of liberty.

2.        State Involvement: The act is perpetrated by state agents or those acting with state authorization, support, or acquiescence.

3.        Refusal/Concealment: There is a refusal to acknowledge the deprivation of liberty or concealment of the fate/whereabouts, placing the person outside the law.

Enforced disappearances constitute human rights violations not just against the direct victim but also against their families and entire communities, often being used as mechanisms of political repression, terror, or ethnic cleansing5.

Missing Persons: Definition and Scope

The term “missing persons” under international law has a broader, less criminally focused definition. According to the ICRC and reflected in customary international humanitarian law (IHL):

A “missing person” is a person whose whereabouts are unknown to his or her relatives and/or who, on the basis of reliable information, has been reported missing in connection with an armed conflict, other situation of violence, disaster, or migration.

Importantly, unlike enforced disappearance, this definition does not require State involvement or concealment, nor a criminal intent64.

Missing persons may result from:

·        Armed conflict, violence, or disaster (where people are separated, unaccounted for, or bodies are unidentified).

·        Migration incidents, such as sinking boats or border crossings.

·        Administrative failures (e.g., poor record-keeping in detentions).

·        Individual/family decisions (runaways, voluntary disappearance).

While all enforced disappearances result in a person going missing, not all missing persons are victims of enforced disappearance. The distinction is crucial for victim identification, state accountability, and applicable legal frameworks.

Comparative Table: Key Differences in International Law

Aspect

Enforced Disappearance

Missing Persons

Legal Definition

Defined in ICPPED (Art. 2) as deprivation of liberty by state agents (or their support) + concealment/refusal to acknowledge

Absence/unaccounted whereabouts (IHL, ICRC)

State Involvement

Required (direct or indirect/implicit)

Not required

Criminalization

Explicit crime under international law (can constitute crime against humanity)

Not necessarily a crime

Applicable Law

IHRL, ICPPED, Rome Statute (ICC), regional treaties

Primarily IHL (Geneva Conventions, Protocols), ICRC

Enforcement Mechanisms

CED, Working Group on Enforced/ Involuntary Disappearances, ICC, regional courts

ICRC, National Information Bureaux, ad hoc/tracing mechanisms

Victim Protections

Right to truth, reparation, guarantees of non-repetition, criminal prosecution of perpetrators

Right to know, family support, search mechanisms

Scope

Perpetrated mainly by states or their surrogates

War, violence, disasters, migration, broad causes

Obligations for States

Prevent, punish, investigate, prosecute, provide reparation

Search, account for, inform families, clarify fate

Remedies

Investigation, prosecution, reparation, international action

Tracing, clarification, family assistance

Notable Conventions

ICPPED, ICCPR, CAT, regional conventions

Geneva Conventions (esp. Art. 26, 136-140), Protocol I, ICRC Statutes

Examples

“White van” abductions, mass surrenders unacknowledged

MIA in war, people lost in natural disasters, migrants lost at sea

This table captures at a glance the core legal, institutional, and practical differences between the two concepts as recognized in international law67.

Enforced Disappearance: International Legal Instruments

4.        International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED)
Adopted by the UN General Assembly in 2006, and in force since 2010, the ICPPED is the cornerstone international treaty governing enforced disappearances.

a.        Key Provisions:

i.           Absolute prohibition (Art. 1; no exceptions in war or emergency).

ii.         Offense defined (Art. 2), with criminal liability of superiors and accomplices (Art. 6).

iii.      Crime may rise to crime against humanity when practiced systematically (Art. 5).

iv.       Ongoing obligation to search for the disappeared and clarify fate (Art. 24).

v.         Victims have right to truth, justice, reparation, and guarantees of non-repetition.

vi.       No statute of limitations until fate is clarified due to the “continuing nature” of the offense (Art. 8, Art. 17).

b.        Monitoring Body: Committee on Enforced Disappearances (CED) reviews state reports, hears individual complaints (optional), and can issue urgent action requests (Arts. 29-36)8.

c.        Scope: As of 2025, 77 states are parties, but key countries-including Sri Lanka-have not yet ratified.

5.        UN Declaration on the Protection of All Persons from Enforced Disappearance (1992)

a.        Serves as soft law but is widely referenced by UN bodies and states.

b.        Detailed victim protection regime-strict criminalization, prohibition of amnesty, victims’ right to reparation, access to judicial remedies, protection of children, and obligation to consider the disappearance a continuing crime.

c.        Inspired the development of ICPPED9.

6.        Rome Statute of the International Criminal Court (ICC):

a.        Enforced disappearance is considered a crime against humanity under Article 7(1)(i) when committed as part of a widespread or systematic attack against a civilian population.

b.        ICC can prosecute such acts when domestic justice fails or is unavailable7.

7.        Regional Treaties:

a.        Inter-American Convention on Forced Disappearance of Persons (1994): Defines the crime, prohibits amnesty, and mandates states parties to adopt criminal laws, search mechanisms, and remedies.

Missing Persons: International Legal Instruments

8.        International Humanitarian Law (IHL): Geneva Conventions and Protocols

a.        Geneva Convention IV (1949), Article 26: Requires parties to armed conflict to facilitate tracing and family reunification for missing persons.

b.        Articles 136-140: Oblige parties to set up Information Bureaux to centralize and transmit information about missing persons and inquiries to trace them.

c.        Additional Protocol I (1977), Articles 32-34: Further elaborates state duties to account for the missing and provide information to families10.

9.        ICRC Mandate and Guidelines:

a.        The ICRC’s Central Tracing Agency operates worldwide, facilitating tracing, identification, and support to families, based on the ICRC Statutes and state agreements114.

10.   Customary International Law:

a.        Rule 117 (ICRC): Each party to the conflict must take all feasible measures to account for persons reported missing and provide families with available information12.

11.   International Human Rights Law (IHRL):

a.        The fate of missing persons may also engage human rights law (e.g., right to life, right to family, right to be free from torture) but is not specifically criminalized unless it overlaps with enforced disappearance6.

Enforced Disappearance

Kupreškić et al. (ICTY, 2000):

·        Established that the systematic practice of enforced disappearance amounts to “other inhumane acts” qualifying as crimes against humanity.

·        Recognized the residual character of this category to capture serious violations like enforced disappearances not explicitly listed in the Tribunal’s Statute13.

Yrusta v. Argentina (CED):

·        The Committee on Enforced Disappearances confirmed that even short-term concealment (seven days) constituted an enforced disappearance. No specific minimum duration is required; the critical factor is concealment/refusal to acknowledge deprivation of liberty7.

Inter-American Court of Human Rights (Various cases):

·        Found enforced disappearance violates multiple rights: to life, liberty, personal integrity, and judicial protection.

·        State is obligated to search, clarify, prosecute, and provide reparations.

UN Human Rights Committee and European Court of Human Rights:

·        Enforced disappearance inflicts inhuman treatment not only on victims but also on their families (e.g., Kurt v. Turkey, Timurtas v. Turkey).

Missing Persons

IHL-Customary Law and Domestic Implementations:

·        Numerous cases before the ICRC and regional courts, e.g., Cyprus Missing, Bosnia and Herzegovina, have reinforced the right of families to know the fate of the missing and states’ duty to conduct searches (see ECtHR Cyprus v Turkey, Inter-American Court Velásquez Rodríguez).

·        The scope of legal protection focuses less on accountability and more on the obligation to search for, identify, and assist, even when criminal intent or state involvement cannot be demonstrated10.

For Enforced Disappearance

12.   Committee on Enforced Disappearances (CED) (ICPPED body):

a.        Receives and considers state reports; issues concluding observations and recommendations.

b.        Individual complaints (if optional protocol accepted) and urgent action requests for urgent searches.

c.        Can request country visits, initiate inquiries, and refer systematic practices to the UN General Assembly.

13.   UN Working Group on Enforced or Involuntary Disappearances (WGEID):

a.        Independent body established in 1980, receives reports, transmits cases to governments, and requests investigations.

b.        Provides families with a channel to communicate with authorities.

c.        Engages in country visits, issues periodic public reports, and assists states in policy development.

d.        Maintains a database of over 62,000 cases from 115 countries (as of April 2025)14.

14.   International Criminal Court (ICC):

a.        Can be seized for widespread/systematic disappearances amounting to crimes against humanity where states are unwilling or unable to prosecute.

15.   Regional Human Rights Courts:

a.        Inter-American Court, European Court of Human Rights, and national courts using universal jurisdiction.

16.   No Amnesty/Non-Derogable Rights:

a.        Both the Declaration and treaty prohibit amnesties or exemptions for those responsible.

For Missing Persons

17.   ICRC Central Tracing Agency:

a.        Operates tracing and reunification globally, mediates with state and non-state actors, maintains the Family Links Network, and advises on implementation of IHL obligations615.

18.   National Information Bureaux:

a.        Required under Geneva Conventions-state agencies tasked with collecting, centralizing, and transmitting information about missing persons and their fate.

19.   Ad Hoc Mechanisms and National Initiatives:

a.        In post-conflict/post-disaster contexts, states (sometimes with ICRC/OHCHR support) establish commissions or offices to clarify the fate of the missing (e.g., Office of Missing Persons in Sri Lanka).

b.        Effectiveness varies greatly; often criticized where authorities lack independence or political will16.

20.   Regional and Multinational Cooperation:

a.        Cross-border tracing for migration crises and mass displacement.

21.   Victims’ Associations:

a.        Key role in documentation, advocacy, and direct search efforts; may trigger international oversight mechanisms when national systems fail.

Enforced Disappearance

Legal Protections:

·        Right to an effective remedy, including judicial review, access to information, and reparation.

·        Access to competent national authorities for complaints.

·        Family and persons with legitimate interest recognized as “victims”-entitling them to protection and compensation (ICPPED, Art. 24).

·        State parties must ensure prompt and impartial investigation, professional search procedures, and meaningful participation of families.

·        Victims and complainants should be protected from reprisals, intimidation, or harassment by authorities (ICPPED, Art. 12; Declaration Art. 13).

Remedies:

·        Seeking information, judicial orders for habeas corpus.

·        Criminal prosecution of perpetrators.

·        Reparation: Restitution, compensation for material and moral damages, rehabilitation, guarantees of non-repetition, restoration of dignity and reputation, and, where appropriate, satisfaction (e.g., official acknowledgment or memorialization)17.

·        Family associations have the right to organize and act without interference.

Ongoing Duties:

·        Enforced disappearances are “continuous crimes”-the state must keep investigating and providing remedies until the fate is clarified.

Intersectional Protections:

·        Gender and child-specific protections: Special attention paid to women (reparations, protection from violence) and children (prohibited adoption, right to identity).

Missing Persons

Legal Protections:

·        Right of families to know the fate and whereabouts of missing persons (IHL, customary Rule 117).

·        Right to information about the fate of the missing, including official registers and centralized information systems.

·        Obligations to search for missing persons, handle remains with dignity, and provide psychological, social, and economic support to families.

Remedies:

·        Tracing and reunification (by Red Cross and other humanitarian actors).

·        Administrative procedures: e.g., certificates of absence for legal affairs (inheritance, marriage, property).

·        Participation in search: Families play a central role in initiating and guiding search processes-it is a right, not a privilege.

·        Community and psycho-social support services to address ambiguous loss.

Ongoing Duties:

·        The obligation to search is continuing and does not expire with the passage of time.

·        Where a missing person is subsequently found to be subject to enforced disappearance, the higher protection regime and remedies apply10.

State Obligations and Accountability

For Enforced Disappearances

·        Prevent: Adopt laws, policies, and procedures to prevent enforced disappearances (registers, checks on deprivation of liberty).

·        Criminalize: Offense of enforced disappearance must be incorporated into domestic criminal law.

·        Investigate and Prosecute: Prompt and impartial investigations; prosecution of perpetrators (including command/superior responsibility).

·        Reparation and Support: Provide effective remedies to victims; support family, social, and legal needs.

·        No Derogation or Exception: Obligations are absolute-even in emergencies or war (ICPPED Art. 1; Declaration Art. 7).

·        International Cooperation: Extradition of suspects, mutual legal assistance, and cross-border investigation.

·        Data and Registers: Maintain official, up-to-date registers of persons deprived of liberty; accessible to families and oversight bodies.

Failure to meet these obligations incurs international responsibility and can result in UN procedures (including CED inquiry or ICC prosecution in grave cases)

For Missing Persons

·        Search and Information: Take all feasible measures to search for, account for, and clarify the fate of missing persons.

·        Support to Families: Guarantee support for economic, legal, administrative challenges.

·        Record-Keeping: Establish, maintain, and share comprehensive lists or registers of missing persons.

·        Cooperate: Facilitate the work of humanitarian organizations, especially the ICRC, and collaborate cross-border.

·        Prevention: Institute policies to prevent people from going missing (identity documentation, protection of populations, early warning, evacuation measures).

·        Legal and Social Rights: Enable families to navigate inheritance, property, marriage, and legal status (e.g., through “certificates of absence”).

While not all missing persons cases lead to criminal accountability, states failing to meet these obligations may face diplomatic, reputational consequences and civil claims.

 

Perhaps nowhere is the distinction between enforced disappearances and missing persons under international law more contested and more consequential than in the context of Sri Lanka’s long conflict and its aftermath.

Context and Scope

·        Sri Lanka is among the countries with the highest number of reported enforced disappearances, disproportionately affecting the Tamil community. Estimates suggest tens of thousands disappeared, especially during the last stages of the civil war in 200919.

·        Common patterns: Surrenders to the military during or after hostilities, followed by systematic refusal by authorities to acknowledge detention or fate (archetypal enforced disappearance).

·        Families, mostly led by mothers and wives of the disappeared, have maintained continuous protests for years, demanding the truth, the release of information about secret detention camps, and prosecution of perpetrators.

Domestic Mechanisms

·        Office on Missing Persons (OMP, 2016): Established by the Sri Lankan government under international pressure, it is mandated to investigate all missing persons cases-encompassing both war-related and other disappearances.

·        Families, especially Tamils, have largely distrusted this office, seeing it as an attempt to diffuse international pressure without real accountability. Criticisms include lack of independence, absence of criminal investigative powers, and the inclusion of individuals with military backgrounds.

·        Repeated Commissions of Inquiry: Since the 1990s, various commissions have failed to clarify cases or hold perpetrators accountable. None have resulted in effective prosecution or large-scale revelations16.

International Response

·        Sri Lanka is not a party to the ICPPED; thus, families cannot access the CED process.

·        Repeated calls by UN human rights mechanisms and the Working Group on Enforced or Involuntary Disappearances for transparency, prosecution, and meaningful engagement with families have gone unheeded.

·        The ICRC continues to provide tracing and family assistance, but is constrained by lack of cooperation from authorities.

Consequences

·        The ongoing struggle of Tamil families reflects dual injustices: the failure to clarify the fate of missing persons and the ongoing impunity for clear cases of enforced disappearance.

·        The systematic nature and political targeting of disappearances in Sri Lanka qualify these acts as crimes against humanity under international law-a standard recognized by UN resolutions and case law.

Why the Distinction Matters

·        Legal Pathways: Victims of enforced disappearance have the right to criminal justice and reparation; missing persons cases, where state involvement and concealment cannot be established, might only allow for humanitarian, civil, or administrative remedies.

·        State Obligations: Enforced disappearances impose far-reaching, non-derogable obligations under international law; missing persons primarily engage state duties to search, account, and support families (IHL).

·        Victim Advocacy: For advocacy and justice, correctly framing a case as "enforced disappearance" can unlock more robust international legal mechanisms and obligations.

·        Truth-Seeking: Recognition as a victim of enforced disappearance comes with access to the “right to truth,” preservation of identity, and heightened international monitoring.

·        Reparations: Only enforced disappearance guarantees full spectrum reparations, including for families and communities, whereas remedies in missing persons cases may often be limited to humanitarian or administrative support.

Risks of Blurring the Line

·        Impunity: Collapsing all missing persons cases into an administrative framework can shield perpetrators from accountability.

·        Victim Blame and Marginalization: Authorities may evade responsibility by claiming inability to determine fate, or by insinuating voluntary disappearance or emigration.

·        International Engagement: States may dilute international pressure by conflating the two categories and establishing non-accountable mechanisms (as seen in Sri Lanka with the OMP).

Watch a video: Why Distinguishing These Concepts Matters for Truth, Accountability, and Justice-Insights for the Tamil Community and Global Human Rights Advocates


For Human Rights Professionals, Tamil Diaspora Organizations, Tamil Political Leaders, and the Tamil Community:

22.   Insist on Legal Accuracy: Advocate for the correct classification of cases-where state involvement and concealment are evident, demand recognition as enforced disappearances, not merely “missing.” This ensures that justice mechanisms and reparation standards are commensurate with the crime.

23.   Mobilize at Multiple Levels: Combine individual casework (filing with the UN Working Group, ICRC tracing, and, where possible, the CED) with high-profile campaigns for state ratification of ICPPED and the adoption of effective domestic criminal legislation.

24.   Strengthen Documentation and Testimony: Continue compiling, archiving, and publicizing evidence-affidavits, photographs, witness statements-showing state involvement to support legal classification of enforced disappearance.

25.   Demand Genuine Accountability: Reject purely humanitarian or administrative remedies where criminal conduct is evident. Press for independent prosecutions, end to impunity, and reform of security institutions implicated in disappearances.

26.   Build International Solidarity: Engage diaspora networks, global human rights actors, and foreign governments to place sustained diplomatic pressure on recalcitrant states.

27.   Support Victim-Led Advocacy: Amplify the voices of families-particularly mothers and wives-ensuring their participation in decision-making, search efforts, and policy advocacy.

28.   Pursue Intersectional Remedies: Ensure the specific needs of women, children, and elders are addressed in all reparation and search initiatives.

29.   Promote Truth and Memorialization: Push for national and international initiatives to preserve the memory and dignity of the disappeared, through days of commemoration, monuments, and changes to educational curricula.

The struggle for justice in the face of mass disappearances is not merely a legal battle-it is a moral, psychological, and existential one. The distinction between 'enforced disappearance' and 'missing persons' is not a technicality, but the dividing line between impunity and accountability, between sidelining and centering the voices of victims. Remain steadfast, document rigorously, and continue to demand the rights to truth, justice, and reparations as articulated in international law20.

Conclusion

The international legal system draws a sharp line between “missing persons” and “enforced disappearances,” reflecting not just differences of fact or circumstance, but of the degree of state crime, victim suffering, and potential for justice. As the Sri Lankan Tamil crisis tragically demonstrates, clarity in definition can mean the difference between closed doors and open paths to accountability.

All communities affected by disappearances, and those advocating for them, must keep this distinction at the forefront-not only to refine legal strategy, but to honor the depth of the wrong committed and to strengthen the prospects for true redress. Where enforced disappearance has occurred, it must be named, prosecuted, and remembered as such.

Our common humanity, international law, and the resilience of the victims all demand nothing less.

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