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New IBAHRI study on enforced disappearances calls on States to uphold international standards
A new study from the International Bar Association’s Human Rights Institute (IBAHRI) highlights gaps in international law as well as States’ failings in the search for victims of enforced disappearances. The study also puts forward recommendations with regard to investigating enforced disappearances – characterised as a continuous violation that remains unabated until the fate or whereabouts of a person are known.
The Spanish-language study, ¿Dónde Están? Estándares internacionales para la búsqueda de personas desaparecidas forzadamente (Where are they? International standards for the search for forcibly disappeared persons), includes statistics from the United Nations Working Group on Enforced or Involuntary Disappearances for 1980–2017, which show that in 56,363 cases of enforced disappearance reported across 112 States, the fate or whereabouts of 45,120 victims remains unknown.
The study points to the problem of investigations primarily focusing on identifying the perpetrators of enforced disappearances, leaving the relatives of victims to lead the search for their loved ones. This is despite the International Convention for the Protection of All Persons from Enforced Disappearance – designed as an absolute prohibition on enforced disappearances – clearly stating that it is the State’s responsibility to continue with the investigation until the fate of the disappeared person is established.
Further, the study illustrates that international instruments outline certain aspects of the investigation that are State obligations, including that:
- the search for victims is held simultaneously with the identification of those responsible, and that there is mutual feedback between the two elements of the investigation;
- the search for the disappeared person is undertaken under the presumption that the person is alive until there is evidence to the contrary;
- and to locate, exhume, protect, identify and preserve the remains of victims, following the strategic development of plans that respond to the principle of due diligence, and consider the creation and updating of genetic data banks.
The consequence of States failing to discharge their duties thoroughly has led to a growing demand from both civil society and governmental institutions for a clear set of international guidelines for the search for forcibly disappeared persons. The aim of this new study is to contribute to the global effort, including that of the UN Committee on Enforced Disappearances, to support States in the search for victims of enforced disappearances, especially as networks of interests and perpetrators increase in sophistication.
The IBAHRI study states:
‘Three specialised bodies – the UN Committee on Enforced Disappearances, the Inter-American Court of Human Rights and the UN Working Group on Enforced or Involuntary Disappearances – have developed an important body of principles and specific obligations under which a search for the disappeared should be conducted. However, though the work of these three mechanisms constitutes a solid foundation for the development of clearer and more specific guidelines on the search for victims of enforced disappearances, efforts have not been systematic or detailed.’
Taking into account the diverse contexts in which disappearances occur, recommendations for systematising and conducting official searches for the disappeared are made to the above three entities, including:
The Inter-American Court should deepen its jurisprudence on the search for persons who have been forcibly disappeared, through the:
- - use of its power to order evidentiary measures ex officio in order to gather more precise and detailed information on search policies and actions, as well as to approach specific experts for their opinion;
- - development of the specific content of the duty to search with due diligence; and
- - strict supervision of the orders related to the search for forcibly disappeared persons.
The UN Committee on Enforced Disappearances should continue to develop standards on searches and procedures to encourage and monitor the way in which States conduct those searches, through:
- - prompt adoption and wide dissemination of the ‘Guiding Principles for the Search for Disappeared Persons’; and
- - providing more visibility and centrality around the search for disappeared persons in the process of reviewing the periodic reports from the States parties to the Convention.
The Working Group on Enforced or Involuntary Disappearances should strengthen its work in the search for missing persons with actions aimed at:
- - systematising and widely disseminating information derived from the cases, as well as identifying best practices and the shortcomings of search activities carried out by States; and
- - raising awareness and deepening the analysis of the search policies for disappeared persons during its visits and reports on countries.
The report has been written in Spanish, given the contribution of the Latin American region to normative developments on enforced disappearances, and because of the current challenges faced by this practice in many countries in the region. A six-page Executive Summary giving an overview of the study and its key findings is available to read in English.
Notes to the Editor
Click here to download the full report ¿Dónde Están? Estándares internacionales para la búsqueda de personas desaparecidas forzadamente (in Spanish).
Click here to download the English-language Executive Summary.
The International Bar Association (IBA) – the global voice of the legal profession – is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, it was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice.
In the ensuing 70 years since its creation, the organisation has evolved from an association comprised exclusively of bar associations and law societies to one that incorporates individual international lawyers and entire law firms. The present membership is comprised of more than 80,000 individual international lawyers from most of the world’s leading law firms and some 190 bar associations and law societies spanning more than 170 countries.
The IBA has considerable expertise in providing assistance to the global legal community, and through its global membership, it influences the development of international law reform and helps to shape the future of the legal profession throughout the world.
The IBA’s administrative office is in London, United Kingdom. Regional offices are located in: São Paulo, Brazil; Seoul, South Korea; and Washington DC, United States, while the International Bar Association’s International Criminal Court and International Criminal Law Programme (ICC & ICL) is managed from an office in The Hague, the Netherlands.
The International Bar Association’s Human Rights Institute (IBAHRI), an autonomous and financially independent entity, works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.
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