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Disappearances in the Post-Transition Era in Latin America$

Karina Ansolabehere, Barbara A. Frey, and Leigh A. Payne

Print publication date: 2021

Print ISBN-13: 9780197267226

Published to British Academy Scholarship Online: September 2021

DOI: 10.5871/bacad/9780197267226.001.0001

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Introduction

Introduction

Chapter:
(p.1) Introduction
Source:
Disappearances in the Post-Transition Era in Latin America
Author(s):

Karina Ansolabehere

Barbara A. Frey

Leigh A. Payne

Publisher:
British Academy
DOI:10.5871/bacad/9780197267226.003.0001

Abstract and Keywords

LATIN AMERICA sits at the centre of the third wave of democratisation that began in the early 1980s. It has advanced farther than any other region of the world in its accountability processes for past human rights violations perpetrated during authoritarian regimes and armed conflicts. Despite these human rights achievements, Latin America is known as the most violent global region. In the last two decades since the transitions, serious human rights violations, especially disappearances, have increased exponentially in several countries in the region. This volume seeks to understand these post-transition disappearances. It does so by examining four different countries in the region and the dynamics that play out within them. It considers a variety of voices and points of view: from the perspectives of victims and relatives; of activists, advocates, and public officials seeking truth and justice; and of scholars attempting to draw out the specificities in each case and the patterns across cases. The underlying objective behind the project is to gain knowledge and to draw on deep commitment to change within the region so as to overcome this tragedy....

LATIN AMERICA sits at the centre of the third wave of democratisation that began in the early 1980s. It has advanced farther than any other region of the world in its accountability processes for past human rights violations perpetrated during authoritarian regimes and armed conflicts. Despite these human rights achievements, Latin America is known as the most violent global region. In the last two decades since the transitions, serious human rights violations, especially disappearances, have increased exponentially in several countries in the region. This volume seeks to understand these post-transition disappearances. It does so by examining four different countries in the region and the dynamics that play out within them. It considers a variety of voices and points of view: from the perspectives of victims and relatives; of activists, advocates, and public officials seeking truth and justice; and of scholars attempting to draw out the specificities in each case and the patterns across cases. The underlying objective behind the project is to gain knowledge and to draw on deep commitment to change within the region so as to overcome this tragedy.

After reading this volume, readers will not only have an overview of the practice of disappearances in the region, but will also be able to gauge how, despite the differences between countries, the social and political logics that support and even encourage disappearances in these places are similar. The disappearances of the past and those of the present are not the same, and it would be a mistake to consider them that way, but the social, political, and economic practices that make them possible are similar. These practices are what we call the logics of disappearance.

The focus on the phenomenon of disappearances in post-transitional Latin America fills a lacuna in academic research. Although there are many studies of disappearances during the region’s past authoritarian rule and armed conflict, the widespread occurrence of these violations in the aftermath of transitions has not been addressed. Unfortunately, and as this book shows, the lack of studies does (p.2) not result from a lack of incidents. The time to understand the horrific practice of disappearance that is being carried out within the region’s procedural democracies, and to confront it, is now.

The book approaches the phenomenon from an interdisciplinary perspective. The authors draw on their professional roles as historians, legal scholars, political scientists, and sociologists. They also include human rights practitioners and individuals who have personally experienced the disappearance of their family members. Thus, each country section includes powerful personal testimony to the impact of disappearance and efforts to address it alongside critical historical, social, political, and legal analysis.

Four country case studies are developed in the book: Argentina, Brazil, El Salvador, and Mexico. The case studies are not the only ones that this project could have undertaken. There is evidence of post-transition disappearances in other countries in Latin America: Guatemala, Peru (Dulitzky 2017: 53),1 Chile, (Dulitzky 2017: 38),2 and Colombia. There is also evidence of disappearances in democratic contexts outside Latin America, such as France, the Philippines, and Turkey (UN Human Rights Council 2020: para. 27). We have selected these four cases in Latin America because of the particular and paradigmatic dynamics of disappearance in the prior authoritarian and conflict situations and post-transition that these countries present for analysis.

Latin America is the region that has been referenced as starting and going farther than any other region in addressing human rights violations committed by state actors during its past authoritarian regimes and armed conflicts. Processes aimed at addressing past abuses, the accountability and deterrence mechanisms underlying ‘transitional justice’, were initiated in nearly every country. The originality of these processes – the first such processes of trials of state actors’ abuses and truth commissions – were not only the first in the world, they also became models for countries in other regions. The concentration of these processes would suggest (p.3) that stronger human rights institutions, more capable of dealing with abuses, would have acted to prevent the same sort of violations occurring in the post-transitional context, specifically disappearances. And yet, the figures from Brazil, El Salvador, and Mexico suggest that disappearances may have actually reached a higher level in the democratic period than during earlier authoritarian regimes and armed conflicts. The relatively smaller number of post-transition disappearances in Argentina seems to reflect that, where human rights organisations have remained poised as watchdogs of governments, they are able to mobilise and are more effective in addressing these violations when they occur. Another reason to focus on Latin America is the particular characteristics of the contemporary period. Democratisation in the region corresponds to at least four large social problems: extreme levels of inequality, violent crime, violent and illicit trade in resources, and corruption. Those factors are not mutually exclusive, they are interrelated – particularly in the phenomenon of disappearance. This book attempts to examine the logics behind disappearances and how they relate to the historical, political, social, and economic dynamics in the region.

The project is not, however, solely an academic enterprise. It aims to constitute itself the practice of human rights work. That is, it draws attention to an ongoing violation that until now has tended to receive recognition only in isolated and extreme situations, such as the case of the 43 students of the Ayotzinapa Rural Teachers’ College in Iguala (Guerrero), Mexico, who disappeared in 2014. In general, disappearances under democratic governments have tended to be viewed as aberrations. This study aims to challenge that perspective and to make visible the widespread and, at times, systematic nature of disappearances in the post-transitional context. Visibility itself is an important impact. That disappearances begin to be viewed as widespread removes the stigma and invisibility surrounding these acts. Shedding light on the characteristics of this crime in Latin America may also heighten the vigilance of domestic and international human rights defenders, to ensure that this insidious practice is not allowed to spread to other procedurally democratic contexts.

In addition, this book has the objective of accompanying victims, their families, and their advocates, and of providing support and human rights tools to address and reduce these crimes.

The voices of relatives of the victims have thus been incorporated into the book. Each case study has a representative text from surviving family members who have sought redress from the state. They have formed their own organisations of victims and they have worked with existing human rights organisations in their attempts to promote their rights to life, truth, investigation, justice, and guarantees of non-recurrence.

These tasks are not without their challenges. A systematic study relies on information. And, yet, with the disappearance of a person, the facts surrounding the crime also disappear. Very little is known about who is disappeared, where, how, by whom. The studies in this book attempt to recover that information through (p.4) testimony; through interviews with victims’ relatives, state officials, and human rights advocates; through archives; through news reports; and through advocacy efforts.

The book has one section devoted to developing the tools to address victims’ rights to truth, justice, and non-repetition. In this effort, advocates for the disappeared have to take advantage of potential pathways – from effective searches to engagement with international mechanisms – that can pierce the deniability and impunity that have shielded these post-transitional states from responsibility. These tools also draw upon the well-developed practices honed during past authoritarian and armed conflict situations in the region.

The patterns revealed from these analyses suggest two attributes that link past authoritarian and armed conflict disappearances with contemporary ones: disposability and deniability. Specifically, those who disappear are ‘disposable peoples’ (desechables). They can be disappeared without provoking massive protests because they are seen within governance institutions and among significant sectors in society as insignificant, or even as the cause of social or political disorder. Their disappearance is thus tolerated. Challenging the myths and beliefs that surround disappearances is part of the human rights work in which this book is engaged.

Those myths attempt to attribute the act of disappearance to the criminal or illegal activity in which the disappeared person was supposedly involved. During the authoritarian and armed conflict period, disappearance was attributed to the traitorous, seditious, subversive rebel elements in society who threatened the established political and economic order. In the contemporary era, disappearances are assumed to be the result of competition among criminal gangs. Even if they are not seen as gang-related, as in the case of Argentina today, the state disavows any role in these disappearances. That denial of responsibility is the second aspect of the human rights work in which this book is engaged.

The book examines two ways in which the state is involved in these contemporary disappearances, rendering them ‘enforced disappearances’ using the language of the International Convention for the Protection of All Persons from Enforced Disappearance. The International Convention recognises the involvement of the state in enforced disappearance where it directly carries out the disappearance, as well as where it ‘acquiesces’. In this book, we consider the involvement of the state in the direct perpetration of disappearance, a crime of commission, in addition to its crime of omission. The crime of omission, acquiescence, occurs when the state fails to address the disappearance through the search for the missing, investigation into the disappearance, identification of those found in mass or unmarked graves, and judicial response related to the crime. The state does not have to have intended to cover up the crime to be complicit in it. In other words, it merely has to fail to carry out its human rights duties and obligations to victims and their families.

We do not expect democratic governments to be involved in either the act of commission or the act of omission. Obligations to protect citizens’ security is paramount in democracies. For this reason, and because disappearance is commonly clandestine, it is often difficult to prove enforced disappearance in democracies. (p.5) The cases revealed in this book begin to show both types of state roles in enforced disappearances, commission and omission. Moreover, they connect the two types of involvements. Because the socio-demographic or political profiles of the disappeared render them disposable, the state feels little pressure – domestic or international – to address the occurrence. Moreover, the disposable nature of disappeared persons means that state agents may become engaged in the act of disappearance, alone or with other non-state actors, with impunity.

The who (disposable people) and the how (impunity) begin to reveal the logics of enforced disappearance to link the current phenomenon during democratic governments with those past forms of disappearance in authoritarian and armed conflict situations. Each of the empirical chapters in the ‘Country Case Studies’ section of this book further develops an explanation for these disappearances. In addition, the two chapters in the ‘Theoretical Framework’ section provide an overarching approach to disappearances from multidisciplinary and legal perspectives.

Finally, the book considers the tools available to families, civil society, legal actors, and international experts engaged in the efforts to stop disappearances, and to seek state responses to the disappearances. These include examples of past activities aimed at visibility, documentation, information, mobilisation, and pressure politics. They also include legal strategies that have been employed at the local, state, regional, and international level. The book thus hopes to put into the hands of those engaged in denouncing disappearance a set of tactics from which they might draw inspiration and method.

Book Outline

The book is set up in three parts that present a theoretical and conceptual framework, case studies, and tools for human rights impact. In Part I the framework for understanding disappearances in post-transitional societies is presented in two chapters. Chapter 1 approaches the phenomenon of disappearances from a holistic perspective, drawing together the historical, political, sociological, economical, legal, and psychological dynamics of the phenomenon. Leigh A. Payne and Karina Ansolabehere specifically examine the degree to which current understandings of disappearances link up with past approaches. They do so by looking at the emblematic historical cases (Night and Fog; los desaparecidos in Argentina) and the legacy that such cases may suggest about how we understand disappearance and the ways to address it today.

The conceptual framework set out in this chapter relies on four overlapping logics. First, the logic of clandestine violent action contends that democracies may be just as likely to use disappearances as authoritarian and armed-conflict governments because of the perceived need of violent reprisals aimed at citizens. In such a context, state violence is hidden, or disappeared, from domestic public and international view. This logic is only likely to prevail, however, where the other three logics coexist. The second logic is the need for, and construction of, (p.6) ‘disposable people’. The state will only get away with its direct involvement in, or its failure to prevent or punish, disappearances if those who disappeared are not perceived to be rights-bearing citizens. An active process of creating official myths about the disappeared begins to justify the violence against them. They tend to be linked with enemies of the political, economic, or social order. The transition from authoritarian rule and armed conflict may place a different emphasis on the alleged characteristics of these disposable peoples – from political subversives to criminal elements – however, the underlying logic of disappearance persists.

Where the disappeared are widely maligned, the state faces little pressure to respond to the demands for investigation from the families. This puts victims and their families in the role of carrying out the investigations themselves, often accompanied by human rights advocates. In some cases, these groups are effective, as they were in the past, in bringing domestic and international pressure to bear on unresponsive states. To do so, these victims groups and their advocates have to overcome the third logic of disappearance examined in this chapter: social order through ambiguous loss. To make demands, families have to overcome social stigma, psychological paralysis resulting from ambiguous loss, and marginalisation and silencing resulting from their connection to disposable peoples. When this happens, there is some hope for social pressure on, and response from, the state. But such efforts are rare because of this set of deeply entrenched logics. Disappearances also have a political economy, or fourth, logic. Disappeared people are economically vulnerable. Many disappear in their workplaces – which raises questions about the role of employers in the political economy of disappearances – or else they cannot disassociate themselves from the crime economy, since many of the people who disappear are forcibly recruited or subjected to sexual slavery or forced labour.

Chapter 2 explains the international legal framework that sets out the obligations of states to address disappearances. Barbara A. Frey locates those obligations across several regimes of international law, including international humanitarian law, international human rights law, and international criminal law, in addition to the Inter-American System’s legal framework pertinent to the four case studies in the volume. The Latin American experience with disappearances during the prior authoritarian and armed conflict period had a direct impact on the framing of the crime under international law. The post-transitional context calls for a re-examination of the definition of enforced disappearance to determine whether it is sufficiently flexible to account for variations of enforced disappearance, whether in countries utilising the national security doctrine, or in those experiencing terrorism, trafficking, or organised crime (Dulitzky 2019). Frey rejects the clear distinction between ‘disappearances’ by non-state actors, and ‘enforced disappearances’, where there is state involvement. The key question is what is the state linkage that is necessary to meet the international legal definition. The case studies presented in the volume demonstrate that many disappearances in democratic settings easily demonstrate state linkage because they are carried out (1) directly by state agents or (2) by other persons acting with the consent and support of the state. Frey observes, however, that a third category (p.7) of disappearances has proven more difficult to account for under international law: crimes of acquiescence. A strategic legal response is required in order to reduce the space within which the state can employ systematic impunity to negate its own responsibility for enforced disappearances. Frey argues that in contexts of historical state involvement in disappearances, such as Argentina, or where there is systematic impunity so that the state consistently fails to search for victims or to investigate disappearances, the ‘acquiescence’ threshold for state responsibility is met under international law.

In democratic states experiencing high levels of normalised violence at the hands of state and non-state actors, crimes of disappearance are rarely solved. Frey argues that such states have few incentives to investigate disappearances because, by attributing the crimes to non-state actors, states are able to deny international legal responsibility for them. Instead of taking immediate steps to search for the victim and investigate the disappearance, therefore, state actors have incentives to point the finger elsewhere: by ignoring or hiding evidence, criminalising the victim, simulating investigations, or merely delaying long enough to endanger the life and personal integrity of the victim. Frey argues that only by tipping the burden of proof away from victims and back toward the states will governments have incentives to solve these crimes. Frey bases her approach on the due-diligence jurisprudence in the Inter-American System and the United Nations treaty bodies. She notes that, in practice, the key element of acquiescence is the one most frequently used by states to block their own human rights responsibility by insisting that the victims provide proof of actual knowledge of the crime. The due-diligence framework shifts that burden, supporting a more contextualised assessment of state action to determine whether state actors have actually taken timely and effective steps to prevent or minimise foreseeable human rights violations by private actors and to investigate, prosecute, punish, and provide reparations for victims of violations. Frey concludes her chapter by explaining how standards set forth in the Guiding Principles for the Search for Disappeared Persons (2019) and the Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) bring into focus the minimum steps states must take to demonstrate in good faith that they are not acquiescing in disappearances.

Part II of the volume sets out four sets of case studies selected for the book given the magnitude of disappearances (Mexico) as well as the emblematic types of disappearances, such as discriminatory practices related to race and class (Brazil), political protest (Argentina), and gang connections (El Salvador). To give voice to the victims, each case study begins with a testimony from relatives of the disappeared. These narratives emerge from family members, most of whom became unintentional activists and human rights defenders because of their life experiences and their encounters with disappearance. They were not born, or trained, or prepared, to take on the roles foisted on them. Their stories tell of the deepest personal pain imaginable: the inability to know what happened; to recover; to understand or accept the disappearance of a daughter, a son, a partner, a sibling, a parent. The stories also speak of an activism born of despair, a realisation that if (p.8) one does not act, no one else will. This is a struggle against silence. It also attempts to combat shame imposed by others, to reclaim the dignity of the disappeared and their families. These stories do not speak of success, unless we see success in terms of perseverance. For years these activists have fought every day for a state response. Even without receiving it, they have continued to struggle.

These personal testimonies are followed by academic and practitioner studies that attempt to cast that personal event in a larger understanding of the phenomenon of disappearance in each country. They reveal the perverse logics of disappearance, the search for the missing persons, the struggle for missing justice. The studies approach the question through historical, political, social, and legal frameworks.

Mexico is the first case study. It is relevant because of the magnitude of cases. The government has acknowledged the enormous toll of disappearances since 2006, amounting to more than 60,000 disappeared persons and 3,631 clandestine graves (Sheridan 2020). These figures are higher than the symbolic numbers used by the families of the disappeared during the Argentine civil-military dictatorship. Despite these terrible numbers, experts have only been able to document the recovery of a small number of people, and only 93 legal actions are open. Thus, Mexico not only has an extreme level of disappearances, but is also characterised by systematic impunity for these disappearances.

The Mexican case study begins in Chapter 3 with the testimony of Lulú Herrera, one of the founding members of a collective of relatives of the disappeared in the state of Coahuila. She tells the story of learning of the disappearance of her husband, eight-year-old child, and two brothers-in-law. She also explains why, after six years without finding even one disappeared person in Coahuila, she and her collective of families continue to struggle in the search for their loved ones and the investigation of the crime. They have faced stigma for being families of disappeared, but they do not believe they have any other choice but to continue their fight. As she describes it, a mother does not give up until her child is found. Lulú Herrera and other mothers, through their perseverance and persistence, have not only raised attention to the disappeared, they have also won legal victories along the way. But their main objective – to find their loved ones – has not, yet, been achieved.

Chapter 4, by Karina Ansolabehere and Alvaro Martos, summarises the findings derived from the first phase of the Observatory on Disappearance and Impunity on the northern states of Coahuila, Tamaulipas, and Nuevo León. The Observatory attempts to answer the questions of who did what to whom, how, when, and where. Its findings contradict prevailing assumptions that disappearances in Mexico can be explained by organised crime alone. They show how the four logics of disappearances presented in the framework by Payne and Ansolabehere (Chapter 1) operate in northeastern Mexico, stressing the idea that, even when different contexts produce different types of disappearances, the logics of these disappearances are the same.

Chapter 5, also on Mexico, by Sandra Serrano and Volga de Pina Ravest, explores the legal strategies that have been developed and used in Mexico. In (p.9) particular, a new General Law on Disappearances offers at the very least state recognition of the phenomenon and its responsibility to address victims’ rights. The chapter explores the promises and limits of the new law based on an assessment of past efforts at searching for the disappeared and rendering justice for victims, as well as a review of the overlapping institutional configuration resulting from the legal changes.

The Mexico case study is followed by a focus on Brazil. In Brazil, disappearances are associated with summary executions by the security forces. In many of the cases, the individuals are eventually found dead in morgues or on the street. This pattern of disappearance is associated with a kind of policing that identifies certain socio-demographic features – young, male, poor, black – with security threats posed by criminal gangs. With only 400 documented cases of deaths and disappearances during the authoritarian period, the more than 200,000 disappearances registered in the democratic period seem to represent a very different and dangerous phenomenon.

Débora da Silva, the mother of a victim and an activist leader of the Brazilian May Mothers organisation, tells her story in Chapter 6. It is not only a personal reflection and expression of grief and anger, but is also a story of how someone turned loss into political mobilisation within Brazilian society. Her story is not an isolated case. She refers to the genocidal security policies that target those who look like her son (male, young, black) and who were born into the same poor neighbourhoods on the outskirts of the city. She found her son – murdered – but has not obtained justice for the wrongdoing. Her story reflects that of so many others.

The study presented by Javier Amadeo and Raiane Severino Assumpção in Chapter 7 provides the background to the events in May 2006 that gave rise to the May Mothers organisation. They cast the event within a broader understanding of the security policing in Brazil that has led to the executions–disappearances pattern. Disappearances have become a kind of security performance in which the state has targeted a specific class of people – poor, black males on the urban margins – for execution and disappearance as a way to demonstrate its commitment to fighting crime.

Chapter 8, by the São Paulo state prosecutor Marlon Weichert, considers how these deaths and disappearances at the hands of the official security apparatus and organised criminal groups can be approached theoretically as crimes against humanity, even though they are being carried out in a nominally democratic society. Given the magnitude of the crimes and their selective nature, Weichert argues that this pattern rises to the most serious level of international crimes. Weichert examines the legal apparatus in place that provides cover for security forces, rather than tools for victims and their families to obtain truth and justice regarding the violation. While, prior to 2019, it was possible to say that the killing of poor black youths constituted a policy of omission, Weichert argues, since then Brazilian security agents have crossed a threshold into actively committing a systematic crime against humanity.

(p.10) The third country case study examined in the book is Argentina. Argentina is infamous for disappearances during the civil-military dictatorship of the 1970s and 1980s. Indeed, the word desaparecido is associated with those acts. So too is the emergence of mothers’ groups (Mothers of the Plaza de Mayo) in searching for the disappeared. We include Argentina in this book not only because of its dramatic past, but also because of the profile of disappearances under the new democratic governments. Argentina represents civil society’s demands for a heightened sense of state responsibility for prompt and thorough investigations into the disappearance of political protesters, or young persons of low social backgrounds. Failure to pursue truth, justice and reparations in these cases reveals the inability or unwillingness of democratic institutions to prevent a recurrence of the historical violence that continues to affect families of victims and the society as a whole.

The Argentine case study begins with Chapter 9, a series of letters by the family members of 28-year-old Santiago Maldonado, who disappeared in Chubut, Argentina. He had been part of a mobilisation by the Mapuche indigenous community regarding land claims against the Benetton company. Violence erupted around these demonstrations. When Maldonado disappeared, it was assumed by the protesters, the families, and their advocates that it was an enforced disappearance with direct involvement of the National Gendarmerie, which had suppressed the protests. Maldonado’s body was recovered from the Chubut River without any signs of violence 80 days later, but the details of the disappearance remain unclear. Maldonado’s brothers wrote open letters to pressure the state to find him. After he was found dead, the brothers and Maldonado’s parents reflected on the vast support they received in the search efforts and in clarifying the facts of the disappearance. This social support distinguishes the Argentine case from others in the volume, where civil society actors face an uphill battle in their search for accountability for disappearances.

Chapter 10, by Natalia Federman, Marcela Perelman, Michelle Cañas Comas, and Gastón Chillier, presents the context in which the well-known Argentine human rights organisation Centro de Estudios Legales y Sociales (CELS) has begun to investigate disappearances under democratic governments. The organisation has a long history of experience investigating and prosecuting disappearances that occurred during the civil-military dictatorship. As the CELS staff present in this chapter, the approach that they used in the past cannot be taken out, dusted off, and applied to current cases of disappearance. Nonetheless, abstracting from the theory used for the crimes of the dictatorship provides insights. Federman et al. suggest that one difference may be motive. These disappearances may not be motivated by a systematic strategy to eliminate individuals. Nonetheless, the treatment of the disappeared individuals and their families when they were alive, once they had disappeared, and after their deaths were confirmed, reflects a systematic disregard for the human rights of certain marginalised communities. In addition, the institutional apparatus engaged in the recent disappearances is more extensive, including hospitals and morgues, judicial bodies, and security forces. Finally, the chapter (p.11) explores a new security context in which political protesters are targeted, a situation that holds an eerie resemblance to the former dictatorship. These patterns are explored in the chapter through a general discussion and an application to two disappearances in which CELS is involved: Luciano Arruga and Santiago Maldonado.

The fourth case study is El Salvador, presented in Chapters 11 and 12. This is the least-studied case and also the one in which the least amount of activism and advocacy has occurred. We include it here because of the particular dynamic of disappearances in the context of gang-related violence. Such contexts seem to heighten a kind of tolerance for disappearance, by explaining away the acts as part of the unfettered violence used by gang members, accepting the use of disappearance by security forces as a form of control over the violence, or even using disappearance as a way to hide everyday forms of domestic and other kinds of violence.

From the perspective of the Salvadoran authorities, the arbitrary detention and disappearance of Yovani and Samuel by soldiers described in ‘Wilson’’s testimony in Chapter 11 is not a paradigmatic example of contemporary disappearances in El Salvador. In a way, their disappearance is more the exception than the rule in a country that has moved from the political violence of the 1980– 92 civil war to the criminal violence of the post-conflict period. However, analysed from the perspective of everyday state presence in the peripheries of El Salvador, their disappearance is not an isolated case. Yovani and Samuel, who went missing in 2014, are two of many youths who have been swept up by state security forces in anti-gang operations. Their disappearance points to patterns of human rights violations that have been aggravated by the government’s mano dura (iron fist) crackdown on violent crime. In his testimonial, Wilson registers some of these violations. He introduces his stepson’s disappearance in relation to state abuse of authority – physical harassment, inhumane treatment, the falsification of evidence, arbitrary detention, extrajudicial killings, and disappearances – as well as in relation to patterns of state–criminal cooperation. His testimonial also gives us a sense of the innumerable obstacles that Salvadorans face in searching for their missing relatives.

The study on El Salvador, presented in Chapter 12 by María José Méndez, demonstrates that the story Wilson relates about his stepson is not unique. Based on interviews and archival research, the study highlights key dynamics of disappearances in El Salvador. On one hand, as Wilson’s testimony suggests, the state itself has ‘criminalised’ the victims of disappearance as part of its security policies. On the other, the state has appeared to cede control to criminal gangs carrying out disappearances. Both dynamics render the state incapable of responding effectively to victims and their families in the demand for the search for the missing and justice for wrongdoing. Relatives find themselves standing in for the state in looking for their missing family members, often exposing themselves to danger in entering territory controlled by criminal elements. The chapter discusses efforts within El Salvador and internationally to try to address the gap that the victims (p.12) experience: that is, that victims possess rights to investigation and justice in domestic and international law, but are blocked from accessing those rights because of the state’s direct and indirect complicity in disappearance.

As the El Salvador case shows, more tools need to be put in the hands of victims, their families, and their advocates. This is the focus of Part III of the book. This section is organised around strategies used to achieve the objectives of visibility, search and investigation, accountability, and deterrence. In Chapter 13, Leigh A. Payne and Hunter Johnson consider the set of strategies used by families and non-governmental organisations to raise awareness of the everyday nature of disappearance. They attempt to erase the stigma of the disappearance on the victim and on families. By incorporating symbols of the home and of the family, these visibility strategies try to show that disappearance is part of the daily lives of families, but also disrupts them. These images reveal that disappearance happens to people like you, and it could happen to you. The campaigns thus draw attention to the crime and to the victims of crime, to overcome the stigma that allows these crimes to remain invisible and unaddressed. They reclaim the rights denied to families: to truth, to life, to redress, to justice. Many of the mechanisms described in this chapter can be employed with very few resources. And at times they have an impact.

In Chapter 14, Barbara A. Frey explains how international guidelines can be used in addressing disappearance cases through the Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016). Frey sets forth the scope and content of the protocol’s standards and explores what relevance they have for government authorities or for families searching for their loved ones. The processes of search and of investigation, while closely related, may involve different motivations, timelines, and standards of proof. The humanitarian search for the disappeared is conducted under the assumption that the missing person is still alive, and is therefore driven by the urgent need to locate the person before further harm may be done. The investigative process must meet the requirements of promptness, effectiveness, independence, and transparency, but is focused on gathering evidence for possible criminal charges and is therefore concerned with the thoroughness and reliability of the materials gathered. In most cases, the Minnesota Protocol is used to find a person presumed to be dead, and the investigative process is designed to locate the body, identify it, and return it to the family for a dignified disposal based on their personal beliefs. How these two processes – search and investigation – work together may be seen in the implementation of a law on disappearances in Mexico that prioritises search through a specialised set of state and federal mechanisms.

In Chapter 15, Rainer Huhle explains the process for sending urgent communications about disappearance cases to the United Nations (UN) system. Huhle introduces the work of two UN mechanisms that address the problem of disappearances: the UN Working Group on Enforced and Involuntary Disappearances (WGEID) and the UN Committee on Enforced Disappearances (CED). Both of these bodies have ‘urgent action’ procedures in disappearance cases, (p.13) though advocates in these cases must tailor their requests to ensure the most impact. The chapter includes a summary version of the forms used to submit requests for urgent action to each of the two UN mechanisms, and what might be expected from each of the procedures. Huhle describes his experience working with this procedure as a member of the CED.

Michael Chamberlin explores in Chapter 16 how advocates are working to bring forward cases involving systematic patterns of enforced disappearance before the International Criminal Court. The Court, established in 2002 and based in The Hague, has jurisdiction over crimes against humanity, a category of crimes that includes the enforced disappearance of persons ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’ (Rome Statute, article 7). Chamberlin describes the strategic reasons for bringing disappearance cases before the International Court, and briefly describes the grounds for admissibility and the procedure used by the prosecutor to review petitions. Every Latin American state, except for Cuba and Nicaragua, has ratified the Rome Statute and, thus, this process could provide an important strategic opportunity for bringing attention to widespread disappearances in the region.

The approach of strategic litigation in the Inter-American System is addressed by Sandra Serrano in Chapter 17. Serrano suggests various possibilities for engaging with the Inter-American Commission on Human Rights as well as the Court, which have both demonstrated a willingness to address the quintessentially Latin American violation of enforced disappearance. The chapter argues that the institutional history of the Inter-American System has been shaped by victims and their families, as well as by the region’s human rights movement, itself forged in the struggle against the gravest human rights violations of authoritarian regimes, which were often committed against political opponents. The Inter-American System serves to respond to the new wave of disappearances in post-transitional contexts.

In Chapter 18, Volga de Pina Ravest discusses the experience of searching for the disappeared in Mexico. De Pina explains the principles and processes for searches that are set forth in Mexico’s 2017 General Law on Enforced Disappearances. The product of a long and intense lobbying effort by networks of families of the disappeared, the law creates separate requirements and specialised tools, related to the search for victims and the criminal investigation of disappearances. This separation underscores the priority of the families, which is to find their disappeared loved ones. The law establishes a National Search Commission as well as requiring each of Mexico’s 32 states to create a local search commission for the purpose of responding in a rapid and coordinated fashion to reports of disappearances. De Pina relates her observations on the successes and shortcomings of the search process, based on her participation in the Citizen’s Council, which advises and oversees the work of the National Search Commission, and on her advocacy activities.

In the Conclusions to the book, Silvana Mandolessi draws out of the set of theoretical, case study, and tools chapters a set of ‘best practices’ or ‘lessons learned’. She recognises the originality of the contribution of this volume in explaining that (p.14) even when the context of disappearances changes there are logics that persist. In these more democratic contexts, families of victims of disappearance continue to face hurdles in attempting to access their rights to truth, investigation, justice, and guarantees of non-repetition. Mandolessi notes how this book contributes to an enhanced understanding of the multiple ways in which disappearances continue to occur in democratic countries. In the face of this continued suffering, the book does not leave the reader in despair, but instead offers a toolbox of best practices for civil society actors who continue to fight against disappearances, in Latin America and beyond. By reminding the reader of the power in the hands of civil society groups, Mandolessi recognises that the fight against disappearances must continue. The book is not an optimists’ view based on wishful thinking, but sets forth the careful study of the efforts – and the outcomes of those efforts – to force democratic states to end this abhorrent practice.

References

Bibliography references:

Ansolabehere, K., B. A. Frey, and L. A. Payne (2017), ‘La “constitución” de la desaparición forzada: vínculos entre los significados legales y sociales de la desaparición’, in Desde y frente al estado: pensar, atender y resistir la desaparición de personas en México, ed. J. Yankelovich (Mexico, Centro de Estudios Constitucionales de la Suprema Corte de Justicia de la Nación), pp. 1–26.

Dulitsky, A. (2017), ‘Enforced Disappearances: General International Law Framework and Its Applicability to Transitional and Post-Transitional Periods’, paper presented at Limits of Transitional Justice: Post-Transition Disappearances and Impunity for Business Human Rights Violations, St Antony’s College, University of Oxford.

Dulitzky, A. (2019), ‘The Latin American Flavor of Enforced Disappearances’, Chicago Journal of International Law, 19 (Winter), 423–89.

Sheridan, M. (2020), ‘More than 60,000 Mexicans Have Disappeared Amid Drug War, Officials Say’, Washington Post, https://www.washingtonpost.com/world/the_americas/more-than-60000-mexicans-have-been-disappeared-amid-drug-war-officials-say/2020/01/06/07a4ea56-24f8-11ea-9cc9-e19cfbc87e51_story.html(accessed 13 March 2021).

United Nations Human Rights Council (2020), ‘Report of the Working Group on Enforced or Involuntary Disappearances’, A/HRC/45/13.

Notes:

(*) This chapter draws from Ansolabehere et al. (2017). Translation by Natalie Felsen.

(1) Ariel Dulitzky (2017: 53) notes ‘the claim [to the UN Working Group] made by the relatives of Bruno Carlos Schell, an Argentine citizen who disappeared in Lima in June 2013 and whose whereabouts are unknown. Even though this is a recent case, according to the information received, the victim’s relatives are facing the same problems as those faced by the relatives of persons who disappeared in the 1980s, such as the investigations being delayed or information being restricted by the authorities. It is worrying that, despite the years that have passed since the first cases of enforced disappearance in Peru, the Peruvian judicial system continues to suffer from legal and structural limitations that hinder the determination of the whereabouts or the discovery of the remains of disappeared persons.’

(2) The UN Working Group on Enforced or Involuntary Disappearances referred to the situation of ‘a young Mapuche aged 16 years, José Huenante, who disappeared in 2005, investigation of which was assigned to the military justice system because those responsible were reportedly Carabineros. This contravenes article 16.2 of the Declaration and constitutes a major obstacle to efforts to end impunity in this case of enforced disappearance. Cases such as that of José Huenante should be investigated promptly and effectively by the ordinary justice system. Still today, the Chilean Carabineros are subject to military jurisdiction for any unlawful act committed by their members. The Working Group has been informed of a new bill to reform military jurisdiction and hopes that it will ultimately curtail its scope, in accordance with international standards.’