The U. General Assembly adopted in the first formal statement on enforced disappearances. Not surprisingly, a Latin American country, Colombia, was the proponent of the resolution. During the same year, after dissolving the ad hoc Working Group, the Commission on Human Rights appointed two experts to study the question of the fate of missing persons in Chile.
The creation of the Working Group was done despite fierce resistance from the Argentine dictatorship. In sum, the Latin American situation and the work of Latin American organizations in the most difficult circumstances prompted the first reactions at the OAS and U. Each of those reactions, namely resolutions, on-site visits, reports, and the creation of special procedures, remain in place today and are some of the main tools to continue dealing with enforced disappearances globally. Latin American organizations and countries have driven the progressive development of international law in the fight against enforced disappearances.
In , the U. General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance, resulting from the leadership work and contribution of Latin American organizations.
Latin American initiatives also led to the inclusion of specific rules on disappeared and abducted children and the right to identity in the Declaration, the Inter-American Convention, the International Convention, and the Convention on the Rights of the Child. Recently, several organizations requested the ICC to open an investigation into disappearances in Mexico.
Latin America has also influenced the development of international jurisprudence on enforced disappearances. The first case on an enforced disappearance decided by the Human Rights Committee the Committee considered the disappearance of a Uruguayan and the rights of his family. For example, the Committee on Enforced Disappearances CED , created to monitor compliance with the International Convention, issued its first decision on the urgent action procedure Article 30 of the International Convention on a Latin American country, and its first visit requested under Article 33 has been for a country in the region.
The first individual case decided by CED was on Argentina. Since its first three cases on enforced disappearance, the Court has developed a very comprehensive and expansive doctrine on enforced disappearances. The Court was also the first and so far only international court to proclaim that the prohibition of enforced disappearance and the duty to investigate has attained the status of jus cogens giving rise to erga omnes obligations. At the same time, enforced disappearances influenced the nature of the Inter-American system.
Uneven domestic efforts in Latin America to develop policies to deal with enforced disappearances accompanied these international responses. The following sections discuss the domestic policy focused on legislation, justice, truth, reparation, and memory. Argentina and Chile took the strongest domestic measures against disappearances. Nevertheless, Latin America led the global effort and laid the foundation in this area.
Latin America leads the process of adopting national legislation on enforced disappearances. Very few countries from other regions have such legislative and constitutional frameworks to deal with and refer to enforced disappearances. These legal provisions are important in many aspects. For instance, recent studies demonstrate that the existence of a national law prohibiting crimes against humanity including enforced disappearances doubles the likelihood of initiating a prosecution and increases the chances of successfully convicting the criminals.
Las ninas perdidas (Roca Editorial Criminal) (Spanish Edition)
Latin America is the one region that has made inroads into prosecuting enforced disappearances in national courts. Argentina and Chile are in the vanguard with hundreds of people processed and convicted for enforced disappearances. There are also a few impressive advances in many other parts of Latin America. Courts convicted former heads of state, such as Fujimori in Peru and Bordaberry in Uruguay, in part for their responsibility in cases of enforced disappearances.
One strategy was a new round of challenges to those laws, this time based on the decisions of the Inter-American system. Today, in many Latin American countries, the discussion has moved from the idea of total impunity to the issue of how to prosecute the criminals in enforced disappearance cases.
Prosecutions and trials attempt to go beyond the triggermen and reach the high-ranking military and civilian officials, as well as the financial and political figures who were complicit in the crimes. A federal court in Argentina convicted a priest for his participation in enforced disappearances cases and another Argentinean federal court recently convicted several judges for their complicity in enforced disappearances.
Some examples range from the use of the Alien Torts Claim Act in the United States to the invocation of universal jurisdiction in the famous Pinochet case and the conviction of former Argentine naval officer Scilingo in Spain. These cases generated or consolidated the cascade or Pinochet effect. However, the so-called Pinochet effect cannot obscure the processes that already existed in Latin America. All of these efforts for justice and the responses at the national, transnational and international levels transformed the view that many Latin Americans had of judges.
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The journey for justice has been far from linear. It reveals an array of inventive, flexible, varied, and versatile strategies, including the use of diverse types of litigation at different stages, both nationally and internationally, responding to opportunities and dodging obstacles.
The experience of Latin America has helped the families of disappeared persons to be understood as victims of enforced disappearances and as holders of a right to know the truth. The first dimension [of the right to truth] is the right of the victims and their family members to know the truth about the events that led to serious violations of human rights, and the right to know the identity of those who played a role in the violations.
This means that the right to the truth creates an obligation upon States to clarify and investigate the facts, prosecute and punish those responsible for cases of serious human rights violations, and, depending on the circumstances of each case, to guarantee access to the information available in State facilities and files concerning serious human rights violations.
Secondly, a principle has been established to the effect that the holders of this right are not just the victims and their family members, but also society as a whole. The Commission has maintained that greater society has the inalienable right to know the truth about past events, as well as the motives and circumstances in which aberrant crimes came to be committed, in order to prevent recurrence of such acts in the future. Latin American courts and tribunals have expressly reaffirmed the right to the truth in cases of enforced disappearances.
In some cases, truth commissions named specific individuals accused of committing disappearances. Some truth commissions started search plans to find those who had disappeared, but with limited success. Of course, those forensic efforts came with strong ethical, legal, social, and political challenges. Due to the demands made by family associations, civil society organizations, and allies, Latin America, more than any other region with the exception of the Balkans, also adopted national search plans like in Colombia or Peru or national commissions for search, like in El Salvador, Colombia, and Argentina, in order to search for and identify disappeared persons.
Some commissions in Argentina and El Salvador are specialized in searching for disappeared children.
There have also been other legal and institutional developments. For instance, the laws of access to information that proliferated throughout Latin America stipulate that information on human rights violations, including enforced disappearances, cannot be restricted. However, as of April only had been positively identified. Latin America also made enormous contributions on the right to and scope of reparations for victims of enforced disappearances.
Most Latin American countries, to varying extents, granted reparations or designed plans for reparations for victims of enforced disappearances with different levels of implementation and success. There has been remarkable production on the theme of memory in areas as diverse as literature, cinema, photography or even television soap operas.
The initiatives encourage reflection and discussion, promote remembrance, express dissent, challenge misleading versions of events, and foster the sensibilization of human rights abuses. In this field, the Inter-American Court although with many theoretical and practical gaps is also contributing to the understanding of memory for enforced disappearances. Latin America also pioneered and shaped human rights work at national, regional, and international levels based on its reaction to enforced disappearances.
Latin American women play a leading, central, and crucial role in this process at the forefront of the struggle for truth, justice, reparations, and the memory of the victims of enforced disappearances. Those mothers used, and at the same time transformed, the traditional role of mothers in Latin American societies to demand truth and justice for their disappeared children.
This has important implications for women, as the wives, mothers, sisters, and daughters of the disappeared, who not only had to search for their loved ones but also endured economic, legal, social, and psychological harms because of losing a male family member. Socially, Latin American women were blamed for not taking proper care of the disappeared loved one. Those women were compelled to search for their disappeared family members, even as they struggled to live with perpetual uncertainty. Women put themselves on the front lines of the search for truth about the missing and disappeared, sometimes at great personal risk.
The Mothers and Grandmothers of the Plaza de Mayo in Argentina, the Vicariate of Solidarity in Chile, and many organizations in every country developed new strategies on disappearances that were adopted in other regions.
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There were three main types of organizations that emerged since the s in Latin America: organizations of relatives, human rights organizations in general, and Catholic organizations. While common precepts and motivations moved those Latin American organizations to evolve in a similar manner, they also diverged in important ways due to different national political contexts. It was not the same for human rights organizations to confront enforced disappearances practiced by a dictatorship, such as in Chile, as those practiced in an electoral but limited democracy with a long history of political violence and the presence of armed insurgencies and drug cartels, such as in Colombia.
Latin America influenced both the development of the concept of and the response to enforced disappearances as an international concern and a specific, complex human rights violation. However, does this experience provide an appropriate global and universal framework for addressing a certain type of state violence that in Latin America is called enforced disappearances? The answer is yes. The model developed to respond to Latin American disappearances is flexible enough that it allows for proper adaptation to different contexts.
However, more research is needed. Does this influential Latin American model limit or constrain us from effectively dealing with disappearances in other contexts? Does the Latin American "model," tying the definition of enforced disappearances to a state action or omission, obscure other similar practices, such as those perpetrated by irregular armed groups, organized crime groups, and terrorist organizations? Does the Latin American emphasis on the criminal nature of enforced disappearance make it more difficult to conceive the violation mainly as an act of creating the conditions in which families were and are not able to search successfully for their loved ones?
This section will start to respond to some of these questions while calling for further research to be conducted in order to analyze the strengths and challenges posed by the strong Latin American influence in enforced disappearances. One of the main lessons from Latin America is that the definition of enforced disappearance, as modeled precisely to respond to the practice in that region, is flexible and comprehensive enough to accommodate differences in the crime and the responses to it.