A Third Category of Enforced Disappearance? The Committee on Enforced Disappearances’ Article 34 Resolution on Mexico

In April 2026, the Committee on Enforced Disappearances (CED) adopted a resolution under Article 34 of the International Convention for the Protection of All Persons from Enforced Disappearance (hereinafter “the Convention”) and urgently brought the matter before the UN General Assembly.  Article 34 empowers the CED to bring a situation to the attention of the UN General Assembly when it receives well-founded indications that enforced disappearance is being practised on a widespread or systematic basis. 

A significant aspect of the Resolution is the Committee’s application of what may be described as a third scenario of enforced disappearance: disappearances committed solely by non-State actors as crimes against humanity under Article 5. Although previously recognized by the CED, the Mexico Resolution assessed this scenario in practice for the first time and within the exceptional Article 34 procedure. Mexico rejected this interpretation, arguing that Article 34 is limited to enforced disappearances involving direct or indirect State participation under Article 2.

This post examines the legal implications of this third scenario, particularly for States’ obligations under the Convention and the relationship between State responsibility and individual criminal responsibility. It argues that, while the CED’s interpretation represents an important development for addressing disappearances committed by organized criminal groups, its application within the Convention raises questions about the boundaries between international human rights law and international criminal law. The post also considers whether this interpretation was necessary in the Mexico Resolution, given the substantial information indicating direct and indirect State participation.

The classic scenarios

International law distinguishes between missing persons, disappearances, and enforced disappearances. A missing person is anyone whose whereabouts are unknown, regardless of the cause. A disappearance occurs when a person goes missing because of the acts or omissions of State or non-State actors (Baser, B. Brett, R. Féron, É. et al. 2025). By contrast, an enforced disappearance is a specific legal category requiring the direct participation of State agents or the indirect involvement of the State through its authorization, support, or acquiescence, followed by the concealment of the victim’s fate or whereabouts. Because State involvement is not always apparent when a person initially goes missing, a disappearance may only later be classified as an enforced disappearance once an investigation establishes the participation of State authorities. 

Consequently, although Mexico’s National Register of Missing and Disappeared Persons reports more than 135,000 missing persons, these figures do not distinguish between the missing, disappearances attributable solely to non-State actors, and enforced disappearances involving direct or indirect State participation. The absence of a clear distinction in the National Register between missing persons, disappearances and enforced disappearances, together with persistent shortcomings in independent and effective investigations, makes it impossible to determine in how many of the more than 130,000 reported disappearances the State participated directly or indirectly.

The CED illustrated direct participation through specific examples, such as the situation in Morelos, where forensic institutions allegedly participated in enforced disappearances by concealing human remains in public mass graves, described as “state-run clandestine graves” (§85), as well as a pattern of detentions carried out by public authorities followed by the transfer of detainees to criminal groups (§39).

In terms of indirect participation, the Committee repeatedly referred to information indicating State participation in enforced disappearances through authorization, support or acquiescence by authorities at the three levels of government (§18, 66, 77, 83 and 105). The CED also pointed to specific cases, such as Rancho Izaguirre, a forced recruitment and extermination camp operated by the Jalisco Cartel, allegedly with indirect State participation (§66 and 84).

A third scenario 

In 2023, the CED issued its Statement on non-State actors in the context of the Convention, recognizing a third scenario in which non-State actors may commit enforced disappearance as a crime against humanity even without State participation (§17). Later, in its findings following its 2024 visit to Colombia, while examining the definition of enforced disappearance under domestic law, the Committee reiterated that the distinction between enforced disappearances constituting crimes against humanity and disappearances committed solely by non-State actors lies in whether they are committed as part “of a widespread or systematic attack against a civilian population” (§67). However, it was not until its Mexico Resolution that the Committee assessed this scenario in practice and did so within the exceptional procedure under Article 34.

The Committee examined in detail whether criminal organizations operating in Mexico and their practices of disappearance could satisfy the contextual elements of crimes against humanity under Article 7 of the Rome Statute and could therefore be characterized as enforced disappearances under Article 5 of the International Convention (§§72-75). The CED concluded that “at least some of the criminal organizations operating in Mexico meet the criteria laid down in article 7 of the Rome Statute” (§82).

Legal implications

By relying on the Rome Statute, the Committee effectively imported into the Convention an additional perpetrator that States Parties did not include in Article 2. While the Rome Statute defines enforced disappearance for the purposes of individual criminal responsibility, the Convention establishes States’ international obligations. Applying the former definition within the latter therefore risks blurring the distinction between individual criminal responsibility and State responsibility for human rights violations.

Recognizing enforced disappearances committed solely by non-State actors also has consequences for States Parties’ obligations. Under the 2023 Statement, Article 5 requires States to apply the Convention even where they did not participate in the disappearance, including obligations to criminalize the conduct, investigate and prosecute those responsible, search for disappeared persons and protect victims (§21). Failure to fulfil these obligations may engage State responsibility without amounting to participation; however, where such inaction reaches the threshold of acquiescence (§5), the disappearance may instead fall within Article 2 through indirect State participation.

This understanding has not been adopted within the Inter-American human rights system. While the Inter-American Court of Human Rights has recognized enforced disappearance as a crime against humanity in the context of widespread or systematic State practices (e.g., Velásquez Rodríguez, Gelman and “Diario Militar”), the Inter-American Commission on Human Rights adopted a different approach in its “Missing Persons” report. From a human rights perspective, disappearances committed solely by non-State actors are addressed through States’ obligations to prevent, investigate, punish and protect (§171). Separately, the Commission recognized that such conduct may constitute enforced disappearance as a crime against humanity for the purposes of individual criminal responsibility under the Rome Statute and called on domestic prosecutors to assess whether the contextual requirements are satisfied (§175). The IACHR thus maintains separate frameworks for State responsibility and individual criminal responsibility.

At the same time, the CED’s analysis of the requirement that the attack be “directed against any civilian population” (§§108-109) illustrates a potential limitation of an approach based on international criminal law. If disappearances committed by organized criminal groups may fall within Article 5, it remains unclear how disappearances targeting members of rival criminal organizations should be treated. By adopting the Rome Statute’s contextual requirements, the Committee risks excluding forms of widespread or systematic inter-cartel disappearances that do not fit neatly within the notion of an attack directed against a civilian population. 

Despite these concerns, the Committee’s recognition that enforced disappearance as a crime against humanity may be committed pursuant to the policy of a non-State organization, even in the absence of State participation, the Committee makes an important contribution to addressing contemporary forms of organized violence. This interpretation creates the possibility of characterizing disappearances committed by highly organized criminal groups, including drug cartels, as crimes against humanity under Article 7 of the Rome Statute, provided that the remaining contextual elements are satisfied. Such a development is particularly significant in contexts where organized criminal groups engage in widespread or systematic practices of disappearance independently of the State. 

Conclusion

The CED’s Article 34 Resolution marks an important development in addressing disappearances committed by organized criminal groups independently of the State. Yet the Committee did not need to rely on this third scenario to activate Article 34 in Mexico, as the Resolution already contained substantial information indicating direct and indirect State participation sufficient to establish well-founded indications of a widespread or systematic practice of enforced disappearance. The significance of the Resolution may therefore lie less in necessity for the Article 34 procedure concerning Mexico than in the broader legal questions it raises about disappearances committed independently by organized criminal groups.

The CED’s approach does not diminish international protection, since States remain bound by the Convention’s obligations in relation to disappearances falling under Article 5. The difficulty lies instead in making their characterization as enforced disappearances dependent on the contextual elements of crimes against humanity. For example, widespread or systematic disappearances targeting members of rival criminal organizations may not satisfy the requirement that an attack be directed against a civilian population. The IACHR’s “Missing Persons” report offers an alternative approach by maintaining separate frameworks for State responsibility and individual criminal responsibility. From a human rights perspective, disappearances committed solely by non-State actors are addressed through the State’s obligations to prevent, investigate, punish and protect, while their possible characterization as enforced disappearance as a crime against humanity is left to the competent domestic authorities for the purposes of individual criminal responsibility.

In its submission to the Committee drew the General Assembly’s attention to the need to establish effective mechanisms to uncover the truth and assist families searching for their loved ones. A hybrid mechanism bringing together the Mexican State, international organisations and civil society could build on this proposal by combining international technical assistance with domestic institutional reform to advance the rights of victims and their families to truth, justice and reparation.