By Megan E. Summers, Webster University – Saint Louis
The paper focuses on the issue of enforced disappearance, which gravely violates the human rights of its victims. The extent of these violations extends beyond individual victims to the rights of their families as well, creating two types of suffering: the immediate suffering of the victim and the subsequent suffering of their family members. Disappearance has been addressed as a human rights issue – such as via the creation of international human rights legal frameworks and court decisions – yet the effects of enforced disappearance must be better understood. Case studies allow us to glimpse into the personal stories of enforced disappearance, including emotional reactions to its occurrence and the rights of family members that are violated. Such review also directs attention toward strategies aimed at its eradication. Recommendations to governments and international assemblies emphasize a respect for human rights and the diminishment of enforced disappearances. In particular, although the rights of the family in relation to enforced disappearance have not received their deserved attention, they are steadily entering human rights discussion.
Chinese authorities arrested internationally-known artist Ai Weiwei in Beijing on April 4, 2011. No official report was made by the government regarding his whereabouts or condition, and his family was completely unaware of his status; he simply disappeared. Chinese officials charged him as guilty of “economic crimes,” which he is said to have confessed to while detained. Prior to his arrest, Ai created and exhibited art that criticized the Chinese government and its actions, which is believed to have led officials to call for his disappearance. Many disappeared persons who have resurfaced into Chinese society refuse to discuss what occurred while in custody, but some have disclosed that they were sent to “labor and re-education camps” (Newman, 2011).
The events that took place to silence Ai are described as an “enforced disappearance.” For governments seeking to prevent the dissidence of its citizens, enforced disappearance has increasingly been implemented as a form of social control. This act is described as the arrest, detention or abduction of a person or persons by, or with the authorization, support or compliance of a state or a political organization (Vitkauskaite-Meurice & Zilinska, 2010, p. 203). Arrest is often accompanied by a refusal to release information on the fate or whereabouts of prisoners. Enforced disappearance occurs with the intention of removing prisoners from the protection of the law for a prolonged period of time; it is used to subdue dissident voices through violence. Its occurrence has steadily led to increasing responses from international organizations and activist groups working to diminish acts of disappearance and to protect those who speak out against oppression.
This paper explores the human rights issue of enforced disappearances, including the repercussions experienced by victims and their families. Enforced disappearances consist of a multitude of human rights abuses that impact a range of actors. First, it is important to look at the history of modern enforced disappearance and what happens to victims when this act occurs. Second, an examination of international legal frameworks highlights how the international community has responded to this issue and identified it as a human rights violation. Third, I argue that enforced disappearance should be evaluated not only with the direct victim in mind, but also with consideration to family members who suffer undue hardship because of these violations. Fourth, a look at international and regional court decisions, as well as transnational activism efforts, illustrates what is being done to prevent and raise awareness about enforced disappearance. Finally, recommendations are provided for bringing further attention to enforced disappearance, as well as for promoting eradication efforts among international and regional agencies, individual countries, and citizens.
Enforced Disappearances as a Human Rights Violation
As dialogue around the issue of enforced disappearance continues to increase, it establishes and sets out how the act exists as a human rights violation on many levels. State enforced disappearances simultaneously violate several documented human rights. Within the Universal Declaration of Human Rights (UDHR), at least six rights are violated: The right to security and personal dignity; the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; the right to humane conditions of detention; the right to legal representation; the right to a fair trial; and the right to life (United Nations, 1948). Enforced disappearance most visibly affects the direct victims of the action, yet its occurrence also impacts the rights of loved ones. Because enforced disappearance is a documented tool of state repression, its use is criticized by human rights advocates such as transnational non-governmental organizations (NGOs). For scholars, an examination of enforced disappearances – including its history – helps to understand how this practice is used and, ultimately, how it may be stopped.
The systematic and repeated utilization of enforced disappearance “as a means of creating a general state of anguish, insecurity and fear” is a recent occurrence (Vitkauskaite-Meurice & Zilinskas, 2010, p. 200). The origination of enforced disappearance as it is currently understood can be traced to Stalinist and Nazi actions during the middle of the twentieth century, with its use later implemented by governments wishing to accomplish similar silencing acts. Modern-day enforced disappearances were discussed as a tool of the state by Adolf Hitler in “The Night and Fog Decree,” in which he expressed admiration for Joseph Stalin’s secret arrests; Hitler later based his own orders of disappearances on Stalin’s actions. These disappearances were implemented as a strategy for the removal of people from Nazi territories who were seen to be “endangering German security” in order to make them “vanish without a trace” (Vitkauskaite-Meurice & Zilinskas, 2010, p. 197-198). Enforced disappearances re-emerged after World War II in the late 1960s, during an era when Latin American dictatorships highly favored a national security ideology that used the practice to silence dissidents. In the 1970s and early 1980s, enforced disappearance spread to other countries such as Iraq, Sri Lanka, and the former Yugoslavia (Vitkauskaite-Meurice & Zilinskas, 2010).
The Impacts of Enforced Disappearance on Victims
Enforced disappearance removes individuals from public sight, making them vulnerable to any actions to which their captors wish to subject them. Amnesty International (n.d.b) describes the amount of time that a person spends while disappeared as a time in which they are constantly in fear for their life Prisoners are often tortured by their captors, disconnected from a society where they have legal protection, and forced to live completely at the “mercy of their captors” (Amnesty International, n.d.b, para. 7). These actions can continue for years if the victim is not released or killed. Even if they are released, it is possible for them to suffer for the rest of their lives from memories of what happened to them while disappeared. Years of physical and psychological consequences are said to follow them, whether they are injuries sustained while incarcerated or mental conditions that formed afterwards (Amnesty International, n.d.b).
The vast occurrence of enforced disappearance in Eritrea since 2001 illustrates the severity of this problem. In September 2001, the Eritrean government arrested 21 leading critics in a shift towards a totalitarian state (Human Rights Watch, 2011a). These disappeared individuals have yet to resurface back into society or make any form of communication to indicate that they are still alive. Since the disappearance of the 21 critics in 2001, it is believed that an estimated range of 5,000 to 10,000 people have been arrested by the Eritrean government due to actions of dissidence. Formal charges of these prisoners are rarely filed, making it nearly impossible for trials to proceed. This leaves prisoners incarcerated without knowledge of their accused crimes and without the possibility of freedom. Government cited reasons for the arrest of individuals range from the “questioning of government policies,” “criticizing the government’s failure to alleviate hunger,” or “owning or listening to Ethiopian music” (Human Rights Watch, 2011a, p. 7). Arrests and disappearances in the country occur at the discretion of the government, with little information made available regarding the reasons for the arrests or the fates of the the disappeared.
Research by Human Rights Watch (2011a) reveals the brutal conditions that face victims of enforced disappearance in Eritrea. In Eritrean prisons, the disappeared are said to undergo “mock drowning” exercises, are restrained via shackles in damaging or uncomfortable positions, and are hung from trees or are forced to lie in the sun for hours or days.. In addition to this brutal treatment, victims are also subjected to beatings, poor nourishment, molestation, and psychological abuse. Conditions within the prisons are further worsened by “heat prostration, unsanitary conditions, lack of medical care, starvation, overcrowding, and other abysmal conditions of confinement” that is said to often cause death among the victims (Human Rights Watch, 2011a, p. 6). The conditions that victims of enforced disappearance are subjected to in Eritrea serve as a model of possibility for what can happen to those who are disappeared by their government in other locations. If removed from the public without their whereabouts being made known, treatment towards prisoners cannot be monitored, thereby allowing human rights violations to continue.
The Impacts of Enforced Disappearances on Families
Interviews with family members of the disappeared highlight how these acts also constitute violations of their human rights; the rights of family members must be taken into account, along with the rights of individual victims. Upon the disappearance of one person, the rights of many others are affected. In a case involving disappearances in Uruguay, the Human Rights Committee declared that relatives of disappeared victims are also victims of human rights abuses. The committee pointed out that family members deserve to know what has happened to disappeared relatives and that they are victims of the same violations that their loved ones undergo (Marks & Clapham, 2005). This position on the rights of the family has been affirmed through court cases in relation to individual disappearances. In 1998, the European Court of Human Rights ruled on a complaint against Turkey that “the mother of a disappeared person – though not the disappeared person himself – was the victim of a violation of the right not to be subjected to torture of inhumane treatment” (Marks & Clapham, 2005, p. 129). The mother’s extended anguish over her son’s disappearance and the absence of information on his whereabouts or safety validated an infringement upon her human rights. Decisions like these by international human rights bodies and courts have affirmed the idea that there is an evolving “right to truth” in regards to the family of people who are endangered by enforced disappearances (Marks & Clapham, 2005).
Another case of violated family rights comes from Argentina, where an eight-year period of military dictatorship (beginning in 1976) resulted in 30,000 disappeared dissident citizens. These disappearances left the country in a state of mourning. As time passed, public remembrance has become a part of mourning for Argentinians, especially as “an integral part of the political landscape of social protest” in the country (Humphrey & Valverde, 2007, p. 180). The term “political mourning” refers to a movement that has been created to “make private grief public” as a way to demand accountability from the state for acts of enforced disappearance (Humphrey & Valverde, 2007, p. 181). Impunidad, or a culture of impunity, refers to the state’s absence of caring, responsibility, or accountability for the actions that they carried out in the past (Humphrey & Valverde, 2007, p. 181). In the case of Argentina, Humphrey and Valverde (2007) argue that the use of human rights discourse helps people to “articulate personal grief, loss, and anger and to legitimize their public demands for state accountability” (p. 181). By legitimizing the idea that this type of family suffering is a human rights issue, disappearances can be linked to other human rights problems. Regard for human rights therefore expands from a general focus on first-generation rights violations (political and civil rights) that occurred under the military dictatorship, to second-generation rights (social, cultural, and economic rights) that are being violated through the suffering of victims and family members (Humphrey and Valverde, 2007).
Research shows that family members of disappeared persons undergo stages of grief similar to the family of confirmed deceased individuals. The Enforced Disappearance Information Exchange Center (n.d.a) explains the emotions that are felt by relatives as the disappeared continue to be missing with no available information on their whereabouts. The Center describes the psychological distress felt by family members as a “severe suffering,” where they feel as if they are the only ones that are feeling this type of mourning for their absent loved ones. They have feelings of “fear, anguish, anger and frustration,” imagining the worst possible circumstances for the disappeared. Intense psychological distress can cause insomnia, anxiety, and survivor guilt; family members live in a limbo of hope and despair, wishing for the return of the disappeared, but losing optimism each day that they do not come home. Once family members accept the idea that their loved one is never coming home, they are still prevented from fully entering the mourning process because they lack of physical remains and absolute certainty. Through extended pressures from families and from society, some state governments release official death certificates for the disappeared. For some families, this document serves as the end of the line for the searching and allows them to begin mourning a death instead of trying to trace a disappearance (Enforced Disappearance Information Exchange Center, n.d.a).
The mental repercussions of enforced disappearance are illustrated by the stories of those who continue their lives in the absense of the disappeared. Hussain et al. (2010) conducted a psychiatric study on 100 family members affected by the enforced disappearance of their loved ones. The study focused on the presence of “complicated grief” in family members, which is described as “a continued separation distress and bereavement related accompanying traumatic distress” (Hussain et al., 2010, para. 1). In these cases, family members are unsure how to proceed with the disappearance of their loved ones; they do not know whether they should accept their deaths or continue to search. Among the family members that were surveyed by psychiatrists, 79% showed signs of complicated grief while 30% were confirmed to have post-traumatic stress disorder. All respondents with post-traumatic stress disorder also had major depressive disorder, which was found in 41% of participants. Only thirty-eight percent of participants were without post-traumatic stress disorder or major depressive disorder (Hussain et al., 2010). The researchers explain complicated grief as “an important diagnosis in this subgroup of population” which “warrants attention” to the affects of enforced disappearance upon family members (Hussain et al., 2010, para. 4).
Through examination of enforced disappearances that have occurred in the past, we can gain insight into how this practice constitutes a human rights violation and how it affects those who are left behind. The efforts made by family members of the disappeared are often exhaustive but do not uncover new information. Families encounter obstacles such as a lack of records and accountability, government refusal of assistance, and general resistance to finding the truth. The actions taken by family members after enforced disappearance has occurred can be briefly summarized through the study of societies that have experienced enforced disappearance, including Argentina, China, and Chechnya.
The people of Argentina were subjected an era of oppression under totalitarian rule which has come to be identified as the Dirty War. The “systematic repressive” Argentinian government established a controlled state in which its citizens lived in a period of ‘political radicalization and repressive escalation” (Feierstein, 2006, p. 150). As citizens questioned what was happening to them, the government began disappearing those who publicly spoke out against the regime (Feierstein, 2006). Enforced disappearances during this era were not completely new to the country. Earlier in the century, sectors of Argentinian society accepted such “military interventionism” in politics as a natural occurrence (Crenzel, 2011, p. 1064). However, attention in the 1960s was given to political repression and support was gathered for political activists that were being imprisoned or murdered. Civil unrest increased as the people of Argentina grew intolerant of the violent society that they lived in. The disappearances, which are estimated to number 8,960, reflect Argentina’s history of violence during the twentieth century. These actions “objectified a decision within the state to carry out a deliberate extermination” of people, and entailed the concealed practices of political assassinations (Crenzel, 2011).
After receiving reports about what was occurring in the country, human rights organizations such as Amnesty International (in 1976) and the Inter-American Commission on Human Rights (in 1979) sent representatives to assess the situation. However, accusations against the government were immediately neutralized by the regime. The organizations discovered that a majority of the abductions occurred in public in front of witnesses, but what happened to the prisoners afterwards was highly guarded as state secrets. This made it difficult to pin the responsibility on the state because information on the disappearances was unattainable (Crenzel, 2011).
There was a rapid increase in human rights discourse about enforced disappearance as information was gathered spread. The facilities where the disappeared were held were described as a “compendium of the worst aspects” of previous camps where torture occurred, with comparisons made to prison conditions during the Holocaust and the Vietnam War (Feierstein, 2006, p. 151). Acts of torture during this era included cattle prodding, systematically submerging the head of the victims in a bucket of water to the point of near drowning, the “humiliation and denigration of prisoners,” in addition to the excess violence, and overall conditions of neglect and starvation of prisoners (Feierstein, 2006, p. 151). Prisoners were also tortured in front of their children or spouses, and children orphaned due to the disappearance of their parents were sometimes given to military families (Feierstein, 2006). Efforts to end the disappearances were made by local human rights organizations and political exiles, who sought to change the public view of the disappeared. Instead of simply being identified as political activists, for instance, the disappeared were profiled as individuals with names, ages, genders, occupations, and most importantly, family. By presenting victims in this manner, the violence of the state was no longer approached as one big issue; instead it became a collection of many individual issues that directly affected the people of Argentina (Crenzel, 2011).
As a response to these disappearances, the group “Mothers of the Plaza de Mayo” was formed. Fourteen mothers of the disappeared stopped searching for their children in police stations, hospitals, army barracks, and morgues and instead congregated in the Plaza de Mayo Square (UNESCO, 2000). Located in front of the president’s residence in Buenos Aires, the mothers’ presence in the plaza exposed the extent of the disappearances to the uninformed public through the use of marches and demonstrations. Margaret Burchianti (2004) describes the work of the mothers as a way for “social memories” to be “transmitted and connected to the realities of Argentina’s present,” using “memories of the past” to act against the fabricated reasoning behind the disappearances as provided by the Argentinian government (p. 233). The mothers, who have increased in great numbers from the original 14, continue to meet every Thursday in the Plaza de Mayo, fighting for ‘memory, truth and justice” (Burchianti, 2004, p. 134). They continue to mourn the disappearances and deaths of their children 35 years after the group was formed in 1977. One of the tools that the Mothers use in their activism is personal testimony; they explain the dread they felt the day their children went missing and the grief they have felt every day since. These statements serve as an authentic tool of expressing the emotions the mothers feel in relation to the disappearance of their children. Burchianti (2004) describes these testimonies as “successful counters” to actions of the state that aim to “silence the past and… subvert the narratives” (p. 137).
The narratives of the mothers also successfully show the emotional torture and misery that a person goes through when a loved one is disappeared. Pepa recounts the disappearance of her daughter, describing the process that many women used while trying to find their children. The search process, which varied little from woman to woman, most commonly consisted of waiting in long lines at police stations, visiting hospitals and morgues, and speaking repeatedly with anyone that might have witnessed the events (Burchianti, 2004). Of her journey and the journey of many other mothers, Pepa wrote:
I don’t know where we got the courage to be able to do all these things to search for our children, but we had to do these things to find our children. When we were in public we didn’t ry, but of course we cried when we were by ourselves. I kept searching for my daughter everywhere… Everywhere I went I gave my name and information in case Maria appeared, but everywhere they said to come back in a week. And each week they never had an answer for me (Burchianti, 2004, p. 138).
Stemming from their love for their children, the work done by the Mothers of the Plaza de Mayo brings attention to the rights of the disappeared as well as the rights of the family. The mothers consider their marches to exist as a “symbol of the memory of the 30,000 disappeared” and as a way to preserve their memories in society’s historical consciousness, attaching their actions to responsibilities of motherhood that they feel towards their children (Burchianti, 2004, p. 140). Through their grief for their missing children, they become charged for political action. Their testimonies turn “the personal into the political,” using their maternal suffering as a root of motivation behind the actions that would call for a government to claim accountability for their actions (Burchianti, 2004, p. 139). Some mothers in the group understood their grief and actions as so strong and persistent because of the bond that they felt to their children. One woman described the work of the Mothers as follows: “Everything came from motherhood. There was nothing else that could have made us do what we did. We were going on instinct, it was not rational, it came from our motherhood” (Burchianti, 2004, p. 142). Their “sorrowful and seemingly apolitical rhetoric and practices” stunned the nation and alerted them of what the government was doing (Burchianti, 2004, p. 141). The occurrence of enforced disappearance and family suffering in Argentina presents human rights violations in two parts: the suffering of victims and the suffering of family members. The latter is based off of the fears of the former, with family members living their lives in fear of what has happened to their loved ones.
An immense amount of research has uncovered human rights abuses in China, including instances of enforced disappearance. In June 1989, student protesters assembled in Tiananmen Square in Beijing, China. They gathered to mourn the death of Hu Yaobang, a political reformist who had been killed by the government two years prior, as well as to call for an increase in their personal freedoms. The government widely controlled university students in their private lives outside of class, such as by limiting social engagements or dating (Hvistendahl, 2009). The protestors attracted attention from the Chinese government as they continued to assemble in the square, with the expectation that the government would use force towards their removal (Richelson & Evans, 1999). The peaceful gathering of protestors and non-action from government officials sprung into chaos as military officers began to use tear gas on the crowds, who responded by throwing stones towards the officers. This was the beginning of an increasingly violent conflict between the Chinese government and protesters, in which armed force was used to control the protestors by whatever means necessary, including their immediate death or disappearance (Richelson & Evans, 1999).
As an adopting party of the Universal Declaration of Human Rights, China infringed upon many of the rights that the country itself acknowledged for its people. Immediate rights that were infringed upon as outlined by the UDHR included the right to life, liberty and security of person (Article 3), the right to recognition as a person before and protection of the law (Articles 6 and 7), the right to not be subjected to arbitrary arrest, detention, or exile (Article 9), and the right to freedom of peaceful assembly (Article 20), among others (United Nations, 1948). If any acts of torture or mistreatment occurred while the government was imprisoning the disappeared, the right to not be subjected to torture (Article 5) was also violated (United Nations, 1948). Because information about enforced disappearances is closely guarded or unknown by current government officials, the extent of these human rights violations upon the disappeared may never be fully known.
Similar to the Mothers of the Plaza de Mayo, another mothers’ group that memorializes the disappearance of their children are the Tiananmen Mothers. The group formed after the killings and disappearances occurred in 1989, and it has compiled a list of 195 names of student demonstrators who were killed and worked to ensure that those victims are not forgotten (Nicol, 2009). The Tiananmen Mothers make demands of the international community, calling for a “review of the pain and suffering that survivors and family members” have felt because of the loss of their loved ones, as well as the establishment of a “judicial process” that will evaluate the incident for government accountability (Mirsky, 2007, p. 16). The group has repeatedly made the same three demands: “a fresh investigation into Tiananmen; public accounting and appropriate restitution; and prosecution of those responsible” (Mirsky, 2007, p. 16). Through the creation of the Tiananmen Mothers, the family members of those that disappeared or were killed in 1989 are able to keep the memories of their children alive despite resistance from the very government that is responsible for their grief.
Members of the Tiananmen Mothers are continuously “detained and threatened” for their actions against the government (Mirsky, 2007, p. 16). Upon the arrival of a human rights supporting foreign official, members of the group were removed from Beijing and prevented from undertaking any activism that could raise international controversy (Mirsky, 2007). The lead organizer of Tiananmen Mothers, Ding Zilin, has experienced human rights violations separate from those associated with the disappearance of her child (Nicol, 2009). While preparing to participate in a 2009 remembrance event, she and her husband were informed by the Chinese government that they were not permitted to attend and demonstrate (Nicol, 2009). Instead they were sent away to “the countryside for a vacation,” a phrase that signifies the government’s incarceration of a person that requires manual labor in rural China (Nicol, 2009, p. 9). This order by the government violates Article 20 of UDHR, which affirms the “right to the freedom of peaceful assembly and association” (United Nations, 1948). In reaction to the government’s prohibition of their attendance to the event, supporters of Ding and her husband called on the Chinese government “to treat the Tiananmen Mothers humanely, such as assuring the right to mourn freely their children and family members” (Nicol, 2009, p. 8). Actions like these by the Chinese government instill a fear in the parents of students who were killed in Tiananmen Square, preventing them from speaking out against the oppressive government that ended their children’s lives (Nicol, 2009). The rights of their children were disregarded in 1989, leading to the end of their lives. As families continue to live in mourning of their deceased children, the rights of the parents have been continually violated.
The people of Chechnya, a region of the Caucasus Mountains in Asia, have endured years of Russian military control that has often resulted in enforced disappearances (Chevalier-Watts, 2010). After a century-long resistance to Russian control, Chechens declared independence from Russia in the 1990s. This action resulted in an increase of Russian martial law in the area that included “sweep operations” and searches for weapons and Chechen rebels (Chevalier-Watts, 2010, p. 478). In the aftermath of the invasion, Russian authorities have either refused to or are unable to provide information about those who have disappeared. Relatives seeking answers about their missing loved ones remain unsure of their location and safety (Chevalier-Watts, 2010). The acts of enforced disappearance began with the failed Chechen declaration of independence in the 1990s and have continued to the present day.
Enforced disappearances in the region continue to occur. In the first half of 2009, the Russian human rights organization Memorial documented 74 kidnappings in Chechnya (Kramer, 2009). These 74 kidnappings, when compared to the 42 in all of 2008, illustrate a “republic…in the throes of an epidemic of kidnappings,” explains New York Times journalist Andrew E. Kramer (Kramer, 2009, para. 5). Natalia Estemirova, a human rights worker associated with Memorial, was one of the disappeared that was later found dead. The Chechen president, Ramzan A. Kadyrow, and his security forces are the individuals deemed responsible for the disappearances (Kramer, 2009).
Human rights violations in Russia occur despite previous actions that aligned the state with international human rights standards. Russia’s acknowledgement of human rights in documents such as the UDHR; the International Covenant on Economic, Social, and Cultural Rights; the International Covenant on Civil and Political Rights; and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment is negated by its actions of disappearance. Additionally, because Russia sits as a permanent member on the United Nations Security Council, any action it takes against its own citizens should be highly criticized by the international community. A researcher at Memorial describes the escalation kidnappings as progressing from being a successful counterinsurgency tactic to a form of political repression by the government. These actions are described as a tool for the Chechen president to settle “personal vendettas” (Kramer, 2009, para. 8). As Ramzan Kadyrov political power grew, his political opponents were removed from society. In January 2009, for instance, a former Chechen government insider was killed in Vienna after publicly accusing Kadyrov of torture. The enforced disappearances targeted the vulnerable and outspoken, including journalists and activists who were previously relatively unknown by society as a whole (Kramer, 2009).
Family members of the disappeared are often the only ones willing to seek out the truth about the disappeared. The 2006 European Court of Human Rights case of Bazorkina v. Russia exemplified the efforts of family members to gain knowledge about their loved one’s fate (Chevalier-Watts, 2010). In February 2000, 25-year-old Khadzhi-Murat Yandiyev was detained by Russian forces (Barrett, 2008). Yandiyev was shown being interrogated by Russian authorities on the news channel CNN, and the news piece concluded with orders by Russian officials for his death (Chevalier-Watts, 2010). Yandiyev’s mother contacted “local, national, and specialist military prosecutors,” in addition to making personal visits to detention centers in search of her son, but was refused assistance by all that she approached (Chevalier-Watts, 2010, p. 478; Barrett, 2008). The stress that Yandiyev’s mother went through in the search for her son, as well as the terror that she must have felt while watching her son being interrogated and sentenced to death on television, is a traumatic event and infringement of rights from which she will never fully recover.
The Council of Europe has issued documents that give claim to the human rights violations of family members of the disappeared. Its Parliamentary Assembly, to which Russia is a member, stated in a rapporteur report that the family members of those who have disappeared “continue to live for many years in a situation of extreme anguish and stress, torn between hope and despair” and that “they must therefore also… be considered as victims of the crime of enforced disappearance” (Council of Europe, 2005, Section III.A.3). In relation to disappearances in Chechnya, the report explained that family members of victims were “too terrified even to lodge complaints with law enforcement agencies or human rights monitors,” which can be interpreted as a violation upon their rights to security of person (Article 3 of the UDHR), a fair trial (Article 10), and freedom of speech (Article 19) (Council of Europe, 2005, Section III.B.2.16; United Nations, 1948). The Council of Europe upholds that the family members of the disappeared are victims of some of the same human rights violations that the disappeared suffer.
Legal Frameworks Surrounding Enforced Disappearance
Legal frameworks have been adopted to fight against enforced disappearances, both regionally and internationally. International legal documents include the United Nations Universal Declaration of Human Rights (1948), the United Nations International Covenant on Civil and Political Rights (1976), the United Nations Declaration on the Protection of All Persons from Enforced Disappearance (1992), and the Rome Statute of the International Criminal Court (1998). Since 2007, the United Nations International Convention for the Protection of All Persons from Enforced Disappearances has been open for signature by state governments. Judicial courts, such as the African Court of Human and People’s Rights, the European Court of Human Rights, and the United Nations Human Rights Committee have also been created to handle human rights claims and enforce international human rights law (Vitkauskaite-Meurice & Zilinskas, 2010).
The Declaration on the Protection of All Persons from Enforced Disappearance was adopted by the General Assembly of the United Nations on December 18, 1992. It was established as an “instrument which characterizes all acts of enforced disappearance of persons as very serious offences and sets forth standards designed to punish and prevent their commission” (United Nations, 1992, Preamble, para. 11). It describes enforced disappearance as an “offence to human dignity” which “inflicts severe suffering” on victims and their families (United Nations, 1992, art. 1). The document places explicit responsibility upon state governments to take all actions possible to prevent enforced disappearance from occurring in that country, including enacting legislation that forbids its occurrence and results in extensively explained “criminal penalties” for those that commit the act. In addition to the punishments that are to be established for those found guilty of committing enforced disappearance, the document also states that victims and family members “shall obtain redress and shall have the right to adequate compensation,” including prompt rehabilitation for surviving victims and compensation for the dependents of any victims whose disappearance resulted in death (United Nations, 1992, art. 19). Overall, the document seeks to assign responsibility on individual states towards the erradication of enforced disappearance through the creation of legislation that prohibits its occurrence and requires strict punishments for those found guilty of its incidence.
The 1998 Rome Statute of the International Criminal Court establishes the International Criminal Court (ICC) as a court with “the power to exercise its jurisdiction over persons for the most serious crimes of international concern” (Article 1). In order for a trial to be heard by the ICC, it must be considered a “serious crime” (International Criminal Court, 1998, Article 5). Serious crimes are established as four possible crimes: the crime of genocide, crimes against humanity, war crimes, or the crime of aggression (International Criminal Court, 1998, Article 5). Enforced disappearance is established as a crime against humanity in Article 7 of the document, therefore placing the crime under the jurisdiction of th ICC. By establishing enforced disappearance as a crime that falls under the jurisdiction of the court, the ICC is able to assign legally binding punishments to perpetrators. Its occurrence warrants sentences of punishment that can include imprisonment (including life terms), monetary fines, or the “forfeiture of proceeds, property and assets” that were gained during the crime (International Criminal Court, 1998, Article 77). By establishing an international court that considers enforced disappearance to be a disciplinary crime against humanity, the Rome Statute creates a strong system of punishments that are to be placed upon those that commit this crime.
The United Nations adopted the International Convention for the Protection of All Persons from Enforced Disappearance in 2003, which became the first universal, legally binding document that concerns enforced disappearances. While it is still pending ratification by the required number of states to put it into action, its focus is to define the positive obligations of states, define the victim or victims of the crime, find and suggest an effective remedy, and create monitoring mechanisms to prevent enforced disappearances from occurring. The preamble states that the document will bring into account previous documents that approached the issue of enforced disappearance, such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, and the International Covenant on Civil and Political Rights (United Nations, 2003). The Convention establishes a legal structure in which enforced disappearance is combated, especially through the placement of responsibility upon state governments to protect its citizens from enforced disappearance. It affirms that no person is to be subjected to enforced disappearance, with no exceptions whatsoever. It defines enforced disappearance as:
“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 law” (United Nations, 2003, art. 2).
Furthermore, Articles 3 through 6 place responsibility on the state to investigate enforced disappearances, guarantee that it is an offense under criminal law, assign adequate punishments, and prosecute any involved person, including those who carried out the disappearances as well as any person that had knowledge of its occurrence. The existence of this document, in addition to others like it, strengthens the international community’s rejection of the practice of enforced disappearance and provides additional support for the protection of human rights (Marks & Clapham, 2005).
Documents such as the International Convention for the Protection of All Persons from Enforced Disappearance and others establish a contemporary, international, and legitimate framework that places responsibility on the state to prevent enforced disappearances and human rights violations from occurring. The legal frameworks previously presented do very well to outline the individual human rights of the victim that are violated when enforced disappearances occur. Missing from modern documents such as these, however, are the specific rights of the family members of the disappeared and how they are affected.
Actions of Prevention and Awareness
In response to state-sponsored enforced disappearances, international and domestic actors have directed efforts towards upholding human rights and challenging oppressive governments. International, regional, national, and community groups have been formed to prevent enforced disappearances, hold offending governments accountable, and support both survivors and victims’ families. A strong regime can be established to end enforced disappearance when organizations work together at the international, regional, and local levels.
International Level: The United Nations
The United Nations has created multiple programs that focus on enforced disappearance. One of these programs is the Human Rights Council, which assigns special rapporteurs, special representatives, and independent experts to “investigate, discuss, and report on specific human rights issues” that are occurring in specific states (United Nations, 2012, para. 8). A working group of investigators reports on occurences of enforced disappearances at each General Session of the United Nations, but there is no individually assigned special rapporteur on the topic (United Nations, n.d.a). With programs like these in place, the international community works together to examine possible violations that are occurring and instances of enforced disappearances are publicized to the world community (United Nations, n.d.b).
In December 2010, the United Nations General Assembly designated August 30 as the annual “International Day of the Victims of Enforced Disappearances.” The day is meant to bring attention to “the increase in enforced or involuntary disappearances… and intimidation of witnesses of disappearances or relatives of persons who have disappeared” (United Nations, 2011, para. 2). In addition to bringing attention to the issue and raising concern for those that have disappeared, the day of memorial has also been established as an avenue of raising awareness towards the rights of the family members. By including family members as persons who are legitimately affected by the disappearances, the United Nations validates the idea that there are more people seriously affected than the disappeared individuals themselves.
Regional Level: Courts
Regional human rights court systems have been established to respond to human rights complaints within a specific judicial area. Because state governments are commonly party to established court systems, these courts are fundamental to progress towards assigning accountability for enforced disappearances. The regional courts consist of judicial officials that are impartial to the situation and have no allegiance to the accused state, allowing the trial to be truly fair (European Court of Human Rights, n.d.). If a government or state official is tried within their own country, the trial would not necessarily be fair; lawyers, witnesses, and victims could be targeted for attempting to act against the government. Judges and jury members could also alter their decisions in order to preserve their safety, while members of the media might decline to report on a trial out of fear of persecution. Because of the danger that accompanies any state-defying actions in countries where the government violates human rights, including the use of enforced disappearance as a tool of social control, courts separate from the states can be used to ensure that states comply with human rights standards (Parliamentary Strengthening Learning Program, n.d.)
The European Court of Human Rights was established in 1959 as a regional court with the authority to hear and rule over cases involving victims of enforced disappearances in Europe. It holds jurisdiction over the 47 member states of the Council of Europe that have signed on to the European Convention of Human Rights, which exists separately from the European Union. When a member-state opts to sign onto the court as a participatory entity, any ruling that is made by the court that concerns that state is legally binding, including rulings that deal with enforced disappearance (European Court of Human Rights, n.d.). The court accepts cases drawn against individuals or entire states, which must consist of a human rights violation in relation to the European Convention of Human Rights (European Court of Human Rights, n.d.). In order for a case to be heard, the applicant must be considered a “victim” of a human rights violation, but the terms of the rule explain that the applicant need not be the direct victim of the violation (Human Rights Education Associates, 2007). This rule can be seen as supporting the fact that family members are also victimized by violations committed upon individuals.
Like its European counterpart, the African Court on Human and People’s Rights is available to hear and rule on cases of enforced disappearances that occur in African countries. Established in 2004, it functions as the principal human rights organization over the member states of the African Union. The court consists of 11 judges that have been elected from the 15 member states of the African Union but, like the European Court of Human Rights, they exist as individuals and not as representatives of their country. Groups that are permitted to apply for their case to be heard by the Court include state parties that are acting for a victim whose rights have been violated, African intergovernmental organizations, non-governmental organizations, or individuals if their state has signified that citizens of that country are permitted to make direct applications to the court. Any decisions made by the court are binding (African Court on Human and People’s Rights, n.d.).
Through the establishment of regional human rights courts, victims of human rights violations like enforced disappearance are able to seek legal action towards human rights violators without fear that they will be punished for doing so. Courts assign accountability toward the member states for upholding the human rights that they have acknowledged through ratified documents (Parliamentary Strengthening Learning Program, n.d.). It is important to note that some regions of the world these types of court systems. Many human rights violations are known to occur in Asian countries, for example, yet a regional human rights court in that area has yet to be established (Sasamoto, 2010). The presence of the courts are beneficial to the family members of those who have disappeared, as well as victims of other violations, because they provide a method of reaching justice that is effective, binding, and safe.
Local and Transnational Activism
Activist organizations provide space for concerned individuals to join with others in order to rally against human rights abuses like enforced disappearance. Groups work to raise awareness on the issue, often through advocacy-based education and fund-raising efforts. Some major transnational organizations, such as Amnesty International and Human Rights Watch, exist as sources of news and information that smaller activist organizations can tie their activities to. Smaller organizations work to spread that information and raise awareness on single issues. Because of its prevalence around the globe, enforced disappearance has become a human rights issue upon which many organizations focus their efforts.
Transnational organizations can use their presence in multiple countries to raise awareness about enforced disappearance near and far. Amnesty International is present in over 150 countries, with over 3 million supporters. It exists as a major source of information for human rights supporters working to stop human rights abuses. Amnesty’s work includes the observation of human rights trials, the creation of news reports, the publicizing of human rights violations, public demonstrations and vigils, lobbying, letter writing, community activities, and much more (Amnesty International, n.d.a). Information offered by Amnesty about enforced disappearance includes a basic description of its occurrence and the human rights it violates, as well as the effects it has for family members of the disappeared. The organization states that it “condemns all enforced disappearances as crimes under international law,” and seeks to achieve justice for those that have been affected by enforced disappearance (Amnesty International, n.d.b, para. 9). By making information available, Amnesty has created an easily accessible database of issues that can be used by other groups and serve as a basis of expanding interest in activism.
At a local level, groups like the Mothers of the Plaza de Mayo and the Tiananmen Mothers provide an outlet for their sorrow and frustration, as well as act as a source of support and solidarity. The mothers should have been mourning the deaths of their children, but instead they were working together to find their missing children in morgues or police stations (Burchianti, 2004). This feeling translated into the creation of very personal activist groups. The presence and visibility of these groups, such as weekly marches by the Mothers of the Plaza de Mayo or a yearly memorial service of the Tiananmen Mothers, raises questions and promotes dialogue about what has happened to them and their loved ones (Burchianti, 2004; Nicol, 2009). Supported by multiple human rights documents and researchers, the members of the mother’s group are direct victims of enforced disappearances who have been left to cope on their own (United Nations, 1992; Council of Europe, 2005; Marks & Clapham, 2005).
An individual is able to use their voice through activism to create a larger, collective voice that sends a vital message to society. Some groups are large and international like Amnesty International, focusing on many issues and areas at the same time. Small, personal activist groups like the Mothers of the Plaza de Mayo and the Tiananmen Mothers are created out of necessity and the desire to bring attention to human suffering. Each form of activism serves an important purpose toward building an awareness of human rights issues; a purpose which empowers individuals to spread information and promote positive change.
Enforced disappearance is an issue that can be approached by many groups, ranging from international agencies to affected individuals. This section outlines recommendations for responding to enforced disappearance at a variety of levels. Each level of action brings with it different strategies towards the eradication and awareness of enforced disappearance. When each group works to end enforced disappearance through methods that are practical for them, information about the issue will spread and its occurrence will diminish.
First and foremost, governments are urged to cease any actions of enforced disappearance that they continue to use on their people. The foundations of state sovereignty imply that a state holds absolute power, yet social contract theorists stress state responsibility toward its citizens. Thomas Hobbes, for instance, argued that state sovereignty was a power authorized by the people, rendering any actions against those people (such as enforced disappearance) as actions outside of legitimate state sovereignty (as cited in Martin, 2011). Any action taken by a government that puts its citizens in danger is therefore an action that does not occur under the safety net of state sovereignty, which then establishes grounds for outside interference. States are implored to act within the parameters of legitimate state sovereignty and abide by human rights standards that protect individuals. If a state cites its sovereignty to condone its human rights violations, such actions would “legitimize the involvement of the international communities in such protection and assistance” in order to keep endangered citizens safe (Cernea, n.d., p. 25). A state that uses its sovereignty in ways that protect the human rights of its citizens, however, should not meet obstruction or interference from outside parties.
As the United Nations creates documents to protect individuals against enforced disappearance, it should also work to document its occurrence via special rapporteurs and specialized agencies. In a 2005 report on enforced disappearance, the Council of Europe explains that enforced disappearance is missing from human rights documents commonly cited in relation to possible violations. The Council also notes the lack of an internationally accepted definition of the term “enforced disappearance” and the implications resulting from that lack. The report explains that documents like the Universal Declaration of Human Rights do not directly address enforced disappearance, and recognizes positive actions that have been taken to include the issue into new frameworks. Member states of the United Nations should convene on the issue of enforced disappearance in order to create a solid definition of the term that includes the specific rights violated by this activity, including both the rights of the victim and the rights of the family (Council of Europe, 2005). In order to monitor acts that could lead to enforced disappearance, the United Nations should create a special rapporteur position to supplement its existing working group on the topic, thereby creating a specialized position that only focuses on this specific issue. The two groups should combine their findings in order to relay information to the United Nations General Assembly and relevant groups within the United Nations, such as the United Nations Human Rights Council (Human Rights Watch, 2011b). Because the United Nations includes such a vast majority of functioning state governments, its actions towards human rights and enforced disappearance hold importance. By ensuring that the issue is regarded with urgency, such as through the creation of a solid definition of the issue and a special rapporteur assigned to its topic, enforced disappearance will be further prevented from occurring on an international level.
A regional human rights court should be established in Asia in order to rule over rights violations in the area. The Fifth Conference of Lawyers in Asia-Pacific set out to establish such a court in 2010, and such efforts should be supported and continued. Differences in political systems and economic development have been cited as reasons for the absence of such a court, but these differences should be regarded as inconsequential compared to the positive effects that a court’s establishment could have in the region. A court in the region would begin to raise awareness of human rights standards to both governments and citizens, which will minimize human rights violations such as enforced disappearance (Sasamoto, 2010).
Action must be taken by governments to assist survivors of enforced disappearance and their families, as well as to memorialize deceased victims. All state governments should act as “driving forces” against enforced disappearance, contributing efforts and tools towards a worldwide eradication of the act (Council of Europe, 2005, Section III.D.2.b.70). If a government acts against enforced disappearance, its occurrence in that country is diminished. By pressuring neighboring countries and economic partners to respect the rights of citizens, a network of human rights respecting governments will be created (Council of Europe, 2005). States should do all that is in their power to participate and encourage public discussion about the occurrence of enforced disappearance, using their influence to work towards its end. If enforced disappearance has occurred in the past of a government’s history, the government should take initiative to enable its citizens to mourn and heal. This might include memorializing deceased victims, making reparations for survivors and family members, and exhuming bodies to allow for mourning to commence (Enforced Disappearances Information Exchange Center, n.d.b).
Activist groups and scholars provide resources for remembering the victims of enforced disappearance, as well. Groups such as the Tiananmen Mothers and Amnesty International should serve as suppliers of the history of enforced disappearance, preventing its history from being erased. Academic study of these events should be used to understand how these rights violations occurred and how they impacted the lives of victims and family members. Through education on enforced disappearance, societies can take control of these acts and ensure that the memories of the disappeared are upheld.
Enforced disappearances are used as a tool of control by governments to silence voices of dissent and possible threats to state power. Often, members of society vanish without a trace and their loved ones are unable to locate them despite seemingly un-ending efforts. As a response to enforced disappearances, the international community has created documents that condemn their occurrence and establish this act as a human rights violation. In addition to the violation of the human rights of the disappeared, enforced disappearance should also be considered as a violation of the rights of the family members. Through the examination of enforced disappearances that have occurred at separate times and in various locations around the world, we can begin to understand the painful effects that are felt by those who have been left without their loved ones, including serious mental anguish. Remembrance and activist groups are often formed to create dialogue and raise awareness of the events that have changed the lives of victims and their families. Because of the actions of international, regional, and local communities, enforced disappearance and the governments that support its use are targeted and penalized. By establishing enforced disappearance as a human rights violation that not only infringes upon the lives of the disappeared, but also the rights of the family of the disappeared, an increased respect for human rights and life will also be established.
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Righting Wrongs: A Journal of Human Rights is an academic journal that provides space for undergraduate students to explore human rights issues, challenge current actions and frameworks, and engage in problem-solving aimed at tackling some of the world’s most pressing issues. This open-access journal is available online at www.webster.edu/rightingwrongs.