By Marina Kumskova, graduate student of human rights at Columbia University
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Between March 2002 and July 2004, eight individuals of Chechen origin were “arrested by groups of armed and masked men in a manner resembling a security operation”. Pointing guns at the family members, the soldiers took men away in military carriers. Similarly, on April 28, 1991, Jeremías Osorio Rivera was officially detained by a military patrol when he went to the village of Nunumia to take part in a sports event. He was accused of making a terrorist threat for carrying an officially registered gun and explosives materials.
None of these men have been seen or heard from since, despite their families’ tireless efforts to find them. In both cases, the males were abducted and detained by armed men without arrest warrant, held in solitary confinement under mortifying circumstances for unidentified periods of time, and deprived of legal assistance or any other contact with the outside world. In both cases, after the abduction of the individuals and in the absence of any information about their whereabouts, the domestic criminal justice systems in the respective countries did not take any measures to provide remedies for determining the fate of the disappeared individuals. They also failed to safeguard the relatives’ right of access to justice and right to know the truth through effective investigation and through holding accountable those responsible for the crimes.
The aforementioned cases are typical examples of the crime that is internationally known as “enforced disappearance.” Today, this crime continues to take place in 88 states all over the world, and constitutes a continuous violation of multiple rights. Enforced disappearances emerged in international discourse after World War II, and the narrative of violations carried out by Latin American military dictatorships in the 1960s and 1970s shaped the development of this discourse. Since that time, the international community has begun to acknowledge that a wide range of human rights of both the victims and their families are denied by the act of enforced disappearance, claiming that states should be held accountable for their failure to prevent the disappearances, to investigate them, and to punish the perpetrators in light of their obligations under several international agreements.
Despite the number of treaties and agreements signed in order to establish an understanding as to the nature of enforced disappearance and determine state responsibilities, the international community has repeatedly failed to create a conceptual framework for enforced disappearances and to establish monitoring mechanisms that can proactively address the problem. This is likely due to political influence in the shaping human rights norms.
The context of the crime of forced disappearance implies that the perpetrator has an unfair advantage over the victim, because evidence is often under the exclusive control of the perpetrator, who typically has intent to hide it. As a consequence of this distinctive characteristic of disappearances, it is up to international human rights bodies, such as the Inter-American and European Courts of Human Rights, to promote and protect individuals from this violation.
Unfortunately, the details and procedures of implementing judgment are specific to each Court. Both courts can and do force states to pay financial compensation to family members of disappeared persons. However, the whereabouts of victims have never been established, and required remedies have never been fulfilled, causing severe suffering of the victims’ loved ones. Under pressure from the Inter-American Court of Human Rights and the Inter-American Commission, Peru adopted legislative amendments and provided special reparation policies. Overall, the Inter-American system has managed to develop valuable jurisprudence that still requires more work in terms of influencing state compliance. On the other hand, the European Court was not able to require any action to be taken by Russia as result of the judgment in the joint case of the enforced disappearance of the eight Chechen individuals referenced above, since it issues only declaratory judgments. Russia has failed to adopt any measures to ensure that no similar violations take place in the future, that violators are adequately deterred, or that family members of the disappeared persons are provided with necessary remedies.
Overall, despite the gravity of the crime, enforced disappearance continues to be ineffectively addressed by regional and international mechanisms. Unfortunately, international human rights courts cannot do much to prevent this crime from happening, especially when the courts investigate cases in which one of the parties is a so-called “powerful” country. Even more unfortunate is the fact that the Courts fail to provide effective remedies to the family members of disappeared persons. While countless people around the world are subjected to injustices, international courts and human rights activists cannot do much about it unless states express their willingness to comply with the judgments. In this light, the most promising method would be to lodge interstate complaints against the countries that are not willing to comply with recommendations or declaratory judgments by creating political pressure. However, the questions remain: which countries will be able to proceed with this legitimate measure without creating political tensions, and how can non-governmental organizations influence this process?
Marina Kumskova is a graduate student in Human Rights Studies Program at Columbia University and a research assistant at the Center for International Human Rights at John Jay College. In her research, she focuses on religious discrimination in the context of counter-terrorism policies.