1.1 Effects of Disappearances

Uncertainty. This simple word does not sound strong enough to describe all the seriousness and gravity of the consequences of an enforced disappearance. This human rights violation consists of an arrest, detention, abduction or other forms of deprivation of liberty by State agents or persons and groups acting with State authorization, support or acquiescence, 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 law.Footnote ² In this context, the meaning of uncertainty goes beyond the lack of information about circumstances of a disappearance and the unknown fate of a missing person. Uncertainty encompasses all the stress, pain, suffering and emotional imbalance caused not only to direct victims but also family members, relatives and others close to the disappeared person.

All disappearances of persons cause uncertainty to families, but enforced disappearances lead to an additional layer of uncertainty, as it is State authorities that should search for missing persons. However, the circumstances of disappearances are rarely clear, thus during the search process it usually cannot be conclusively established whether the person was forcibly disappeared. Because of that, according to the UN Committee on Enforced Disappearances (CED, the Committee) States should conduct search activities according to the enforced disappearances framework, even when the enforced disappearance has not been conclusively established yet.Footnote ³ Additionally, acquiescence is the attribution threshold for enforced disappearances under international human rights, thus – as also widely discussed by various authors in this edited volumeFootnote ⁴ – disappearances committed by persons not formally affiliated with the State can be enforced disappearances. As such, we use ‘disappeared persons’ to apply to persons that went missing and may have been forcibly disappeared and ‘forcibly disappeared’ to those with regard to whom it has been established that they were victims of enforced disappearances.

Being an individual case or a part of a widespread or systematic practice, an enforced disappearance prevents all directly or indirectly affected persons from continuing with their lives normally. A mother whose son went missing after he had left home in El Salvador looking for a better life in Mexico explained to the Committee how this changed her life:

A wife of a man disappeared in Pakistan shared her pain with the CED: ‘It took me many months before I realized what had happened and that I needed to get up from bed and start searching for my loved one …. As I got up with extraordinary pain and determination, I started an endless, nerve-wracking battle in which I never rested.’Footnote ⁶

The uncertainty also describes a legal vacuum because the unknown fate of a disappeared person has legal consequences and comprehensively affects the financial capacities of the whole family, especially when the main breadwinner went missing. Families often do not know whether the disappeared persons are dead or alive, which leads them to feel a sense of loss called ‘ambiguous loss’.Footnote ⁷ Their access to property rights, childcare and various forms of social support and protection is frequently challenged by the uncertain fate of their loved one(s).Footnote ⁸ It tangles and breaks sensitive and priceless links between family members who desperately seek the truth.

A mother of a disappeared person from Mexico highlighted the impact this has on her grandchildren: ‘My grandchildren can’t understand that their parents were disappeared. They are convinced that they were abandoned. This makes them desperate, and they have lost touch with reality …. My eleven-year-old grandson is now involved in organized crime. He thinks they will give him news of his parents. I am desperate. The children of the disappeared are the forgotten ones of the system.’Footnote ⁹

Another Mexican victim, a minor, said: ‘I never imagined I would be here with you now, talking about my mother’s disappearance. I didn’t think this was possible. It’s not the kind of thing they teach you at school. When your mother suddenly disappears, you have no idea what to do. It’s a nightmare that starts over every day.’Footnote ¹⁰

The families clearly want to receive support and information about their disappeared loved ones.Footnote ¹¹ The support may assume different forms, but we should remember that it may not mean financial compensation only.Footnote ¹² Without proper institutional support, the families feel abandoned in their attempts to search for their loved ones. They need truth, justice, reparation.Footnote ¹³ On the international level, there are different perspectives on reparation from regional courts, which have a huge influence on the outcomes of cases for victims of enforced disappearances.Footnote ¹⁴ Not all families have the same needs, which both international and domestic courts must also consider.Footnote ¹⁵

Today, the statistics regarding disappeared persons and victims’ heart-breaking stories amount to millions around the world. In Mexico alone,Footnote ¹⁶ the number of disappeared persons has recently reached 100,000.Footnote ¹⁷ However, we must understand that despite the previous and unfolding crises of disappearances in several regions, enforced disappearances may occur anywhere and at any time. These are not isolated phenomena linked to a particular region, time and cultural, social or political background. Yet, each of these circumstances – individually or in synergy – may influence the occurrence and frequency of enforced disappearances.Footnote ¹⁸

The diverse patterns of enforced disappearances, the growing community of those who suffered from them and the emerging situation in terms of global capacities to address all the challenges foreground the burning need to create a diversified response. This book contributes to those joint efforts to better understand – but also to improve – the universal legal responses to enforced disappearances. It demonstrates the practical functioning of UN standards and mechanisms and their relevance in specific regions and countries.

1.2 Current Developments and Legal Frameworks against Enforced Disappearances

International law avenues have been used for a long time to address enforced disappearances, with the first person being convicted by an international court for enforced disappearances in 1946. The German field marshal Wilhelm Keitel was sentenced in the Nuremburg trials, among other things, for implementing a policy for secretly transporting persons engaged in resistance activities in Western European territories, for whom the issuance of the death penalty by a court was uncertain.Footnote ¹⁹ However, subsequently, it was rather the human rights law than the criminal law framework that developed rules regarding enforced disappearances, first on the regional and then on the international level.

1.3 Aims of the Book

This book demonstrates the current challenges in the area of enforced disappearances and how they have been – or can be – addressed using international law and UN mechanisms. The challenges are not limited to a particular region, time or context. Throughout different parts of the globe, families of forcibly disappeared persons face similar problems, including ineffective search for the disappeared persons or utter lack of support. By bringing together different questions considered in the chapters highlighting universal or regional perspectives, the book contributes to the discussion on the protection from enforced disappearances from both an academic and practical viewpoint.

The frameworks developed in international human rights law at the universal level reside at the centre of this book’s focus. At the same time, the book touches on other areas of international law that are relevant for enforced disappearances, in particular international humanitarian lawFootnote ⁴¹ and international criminal law.Footnote ⁴² Some of the questions regarding the overlap and influence between those areas of international law find elaboration in the chapters on enforced disappearances in warFootnote ⁴³ and committed by non-State actors.Footnote ⁴⁴

As this book addresses universal challenges, it focuses on universal mechanisms and responses. However, the regional systems were central in developing universal standards, and so, the former continue to influence and dialogue with the latter. Consequently, the book also engages with regional frameworks, reflecting not only on the well-known European and Inter-American systems – recognized for addressing enforced disappearances – but also the African system.Footnote ⁴⁵ Moreover, the book reflects on the standards set by another regional organization, the European Union, as it evaluates the painful experiences of the Western Balkans in the context of its attempts to join the European Union and achieve its rule of law standards.Footnote ⁴⁶ Furthermore, the book explores the reasons for the insufficient influence of the universal mechanisms in the Asia and Pacific region.

Besides the role of universal and regional mechanisms, this book recognizes the variety of actors at the national level and their specific roles in the commission and eradication of enforced disappearances. Mindful of the above, the book deals with State and non-State actors, victims and human rights defenders.

Furthermore, our publication focuses on families,Footnote ⁴⁷ which stems from several factors. First, enforced disappearances are chosen as means of violence precisely because they affect not only the disappeared person, but they also frighten their families and communities. Second, families endure unique forms of suffering in direct result of a disappearance (ambiguous loss).Footnote ⁴⁸ Third, it is the families that have been at the forefront of the fight against enforced disappearances.Footnote ⁴⁹ Their involvement initially focuses on finding their family members, but it often transforms into broader human rights activism.Footnote ⁵⁰ Therefore, this family-centred system strongly affects the approach of this book, emerging as a horizontal issue relevant to several of its chapters.

Finally, the book considers a gender-sensitive perspective. Most of the disappeared are men, while most of the left behind are women, whose economic situation deteriorates after the disappearances. Often, the disappearances stigmatize the women,Footnote ⁵¹ forcing them into low-paying, unstable jobs.Footnote ⁵² Thus, courts should also acknowledge the gender violence that accompanies enforced disappearance cases.Footnote ⁵³

Such complex scope of this book shows in its authors’ diverse professional background and rich professional experience, which provides a comprehensive approach to addressing enforced disappearances. The authors are current and former members of the UN Committee on Enforced Disappearances, the UN Working Group on Enforced or Involuntary Disappearances and other UN treaty bodies. Besides their rich experience in UN mechanisms, their individual engagement in various professional fields ensures a rich expertise and different perspectives in the identification and addressing of relevant issues. Most are active members of the research community. Many participate in regional developments regarding enforced disappearances, NGO operations, along with domestic mechanisms and initiatives aimed at the eradication of enforced disappearances. Such a diverse group of contributors allows this book to become a strong and nuanced voice in the discussion on enforced disappearances.

1.4 Structure of the Book

The book is divided in two parts collecting analyzes of still insufficiently elaborated issues. The first part of the book, consisting of four chapters, considers horizontal issues: the application of enforced disappearances in armed conflicts, the impact of the Guiding Principles on the Search of Disappeared Persons, new technologies and enforced disappearances, as well as social rights. Three of these chapters closely zoom in on the two UN bodies dealing with enforced disappearances, the WGEID and the CED, showing their impact, contribution to the field, as well as pointing out areas for improvement. The second part of the book, consisting of five chapters, scrutinizes global challenges based on case studies, namely the role of NGOs, disappearances by non-State actors and of migrants, reparation and ratification of the ICPPED. Those chapters are all embedded in a regional case study, which allows for delving in more detail into examples, which showcase broader trends and challenges.

Chapter 2 analyzes enforced disappearances that occur during armed conflict, which is a worldwide phenomenon, raising many theoretical and practical questions. The author of the chapter, Ivan Jovanović, himself a practitioner, addresses the issue of enforced disappearances in armed conflicts through the lens of the ICPPED. The chapter explores the differences between enforced disappearances and the term ‘missing persons’ existing in international humanitarian law. It also demonstrates how the ICPPED fills gaps in IHL, highlighting the advantage of an international treaty in contrast to customary law – in particular for practitioners – as well as the potential of the continues nature of enforced disappearances for accountability efforts. Furthermore, limitations of the ICPPED in the context of armed conflict are shown, particularly by not including non-State actors among the potential perpetrators. While victims of enforced disappearances are a narrower group within the broader category of missing persons, the chapter argues for cautiousness not to exclude large numbers of families of missing persons from access to aid, services and reparation.

The CED’s Guiding Principles on the Search for Disappeared persons adopted in 2019 are embedded in a similar approach, by stating principles that States are expected to apply in all instances, not just when it is clear that an enforced disappearance took place. Chapter 3, exploring the origins and assessing the impact of the Guiding Principles, was written by the two CED rapporteurs appointed to prepare the Guiding Principles, Maria Clara Galvis Patiño and Rainer Huhle. The authors highlight the autonomous obligation of searching for disappeared persons and explain how through its various instruments – urgent actions and State reporting – the CED became aware of the need to adopt guidelines on the search. The chapter’s unique contribution is particularly the exploration of the impact the Guiding Principles have, during their first four years of existence (2019–2022), already made on public policies of States – both State parties and non-State parties to the ICPPED, case law, legislation, academic literature and civil society. The chapter shows the particularly significant impact in Latin American countries and the Inter-American system, while also being showcased in other regions, notably with the inclusion of the Guiding Principles in the Guidelines adopted by the African Union. The wide impact of the Guiding Principles can be explained by the highly participatory consultation process leading to its adoption, as well as efforts to widely distribute the Guiding Principles. It also is a tribute of the involvement and activities of families of disappeared persons, who were involved in the consultation process and are now demanding the Guiding Principles to be implemented domestically.

The search for disappeared persons and thus the efficient implementation of the Guiding Principles are strongly impacted by the development of new technologies. Gabriella Citroni, the author of the WGEID 2023 thematic study on the topic of new technologies and enforced disappearances wrote Chapter 4, showing both opportunities and challenges in the area. The chapter briefly analyzes the main finding from the work of UN Special Procedures on new technologies, including the WGEID, and then demonstrates the role new technologies have so far played in the activities of the WGEID, as well as areas for improvement. Citroni shows that there are still many questions as to which new technologies would be accepted – and how their credibility could be assessed – by the WGEID when reviewing cases under its humanitarian mandate. The chapter further explores how the WGEID could better engage with new technologies during its country visits. While highlighting the necessity of traditional approaches and techniques, the chapter shows also that new technologies can greatly enrich the functioning of the WGEID and argues that their opportunities outweigh the challenges. The questions posed and solutions proposed in this chapter can be equally relevant for the CED.

Chapter 5, written by Ariel Dulitzky, turns to social rights of disappeared persons. This often overlooked topic is crucial, as access to property, health care, education, religious facilities and other social and cultural rights can be restricted, discontinued or permanently blocked due to an enforced disappearance. Dulitzky demonstrates positive aspects in the CED’s approach to social rights, as well as showcases gaps. He proposes to use approaches of the WGEID, Inter-American Court of Human Rights, UN treaty bodies and special procedures to seek alternative solutions. In particular, the WGEID 2015 thematic study on economic social and cultural has shown both how people who are unable to fully exercise those rights are more likely to become victims of enforced disappearances and that those who enforced disappearance have a particular negative effect on enjoyment of social rights by the disappeared persons and their families. The significant contribution of the Inter-American Court of Human Rights stems from its understanding of enforced disappearances as a multiple violation of multi-offensive nature and by being a pioneer in acknowledging families as victims of enforced disappearances. Dultizky argues that relying on those approaches would allow us to address the restrictive interpretations applied so far by the CED.

As mentioned above, the second part of the book analyzes the universal challenges from regional or domestic perspectives. It starts with Chapter 6, on the NGO contributions to eradicate enforced disappearances in Latin America. Born from the enormous suffering of mothers and grandmothers looking for their loved ones, the NGOs in Latin America have grown into one of the main forces to initiate, support and complement activities of the universal, regional and national institutional mechanisms that combat enforced disappearances. The chapter’s author, Horacio Ravenna, was himself engaged with several of these crucial NGOs and provides a first-hand analysis of their background, current challenges and perspectives of their involvement in the eradication of enforced disappearances. The chapter is a tribute to the people and organizations that were substantial in pushing for an international treaty on enforced disappearances.

While the initial consolidation of NGOs was made because of widespread enforced disappearances of political opponents in Latin America, the reasons for more current disappearances are complex, covering particularly war on crime and migration. Chapter 7 by Lene Guercke demonstrates how contemporary disappearances in Mexico have become a conceptual challenge for the international framework on enforced disappearances. The country has experienced an unprecedented increase in disappearances since the adoption of the militarized approach to public security in 2006, commonly called the ‘war on drugs’. One of the features of those disappearances is that they are often committed by criminal organizations, thus triggering questions on whether and how the enforced disappearances framework can be applied at all. The chapter’s conceptual contribution is an analysis of whether a failure to identify dead bodies can be a form of enforced disappearances and under which circumstances impunity can be assessed as form of acquiescence. In the search for a response to the second question, the chapter engages in depth with the 2023 CED’s statements on non-State actors.

Chapter 8 engages with another form of contemporary disappearances, that is, disappearances in migration, zooming in on Africa. As the contribution by Eva Nudd and Barbara Lochbihler makes clear, the continent is an important case study for this topic due to the widespread disappearances occurring to migrants and refugee seekers, as well as regional initiatives aiming at addressing precisely this topic. Among others, the African Commission adopted in 2021 a resolution addressing the problem of missing migrants in Africa and the impact on their families. The authors, both knowing and have worked on enforced disappearances on the continent, highlight also practical challenges, such as the lack of understanding of the very concept and distrust in authorities. They conclude that awareness raising and capacity building is a crucial step to overcome existing challenges.

Western Balkan countries have achieved incredible progress in establishing the fates and whereabouts of 30,000 (out of 40,000) missing persons after the wars in the 1990s and 2000s. Chapter 9 engages with an aspect that so far has received less scholarly attention than the search for the disappeared persons in this region: reparation. The authors of the chapter, Milica Kolaković-Bojović and Jasminka Džumhur, both researchers and practitioners from the Western Balkans, present an in-depth analysis of the complex legal situation on reparation in the region. They point out the impact of differentiation between family members of civilians and military members, as well as the challenges of families living currently in different States than where their loved ones disappeared. While the adopted laws differ between the three analyzed countries, namely Bosnia and Hercegovina, Serbia and Croatia, a common denominator is the absence of the crime of enforced disappearances, which appears particularly surprising in a region where the violation was so widespread.

Considering the undisputable importance of the universal applicability of the ICPPED, Chapter 10 is devoted to strategies of increasing ratification. Written by Koji Teraya, a human rights expert coming himself from the region with the least amount of ratification – the Asia-Pacific region – it takes such a regional focus. Teraya analyzes the impact of such a situation on the ratification coverage goals set by the CED and emphasizes that this imbalance suggests that focusing on bottleneck regions will be more effective for increasing ratification. The chapter concludes that the slow tempo of the ratification and the seriousness of enforced disappearances urge for the need to arrange symptomatic treatments, along with suggesting possible strategies to increase the number of ratifications in the Asia-Pacific region.

We expect that our assessment and contextualization of the most serious problems, recent achievements, current debates and rich experience of countries and regions with widespread problems of enforced disappearances in this book will influence the scientific and professional community – along with decision-makers at the national level – to recognize and address the challenges associated with this phenomenon in a most efficient manner. We sincerely hope this book will not remain exclusively on the shelves and in the hands of academic community members. After all, our overarching goal was to shed light on and explain the phenomenon of enforced disappearances and provide solutions for how to deal with them globally, regionally and locally through the joint efforts of the UN and regional mechanisms, national authorities, NGOs and the academic community.