- Nunca Más: An Analysis of International Instruments on “Disappearances”*
Twenty years after Latin American military dictatorships shocked the conscience of the world by “disappearing” their political opponents, the United Nations and the Organization of American States have adopted standards that seek to prevent and punish this grisly practice. This article reviews the process of the development of these standards and examines the extent to which they respond to the concerns raised by human rights groups and families of the disappeared. [End Page 365]
I. Introduction: International Responses to the Forced Disappearance of Persons
The Nazi regime was probably the first to practice “forced disappearances” of persons to eliminate its victims without a trace. In the 1960s, the Guatemalan security forces began to use forced disappearances as part of their counter-insurgency campaign, a tactic replicated in the 1970s and 1980s by military regimes throughout Latin America. Now, however, it is governments in Asia, including Iraq and Sri Lanka, that hold the record for disappearing their citizens. 1 For the most part, those disappeared have been political opponents and members of grass-roots organizations.
Disappearances are perhaps the cruelest form of government abuse, causing agony not only to the detainees but to their relatives as well. Detainees are cut off from the outside world, deprived of any legal protection, and subject to the whim of their captors. Most often they are tortured and then secretly killed. The relatives of detainees, meanwhile, are unable to ascertain their fate—whether and where they are being held, whether they are even dead or alive. Usually, the relatives are kept in the dark long after the detainee has been killed and are thus unable to start life anew or even to deal with the legal practicalities of a death in the family.
Governments often resort to disappearances because of their deniability. By “disappearing” their opponents, governments conceal the authors and the circumstances of their actions. Governments can also confuse public attention, accusing opposition groups or asserting that the supposed disappeared had instead willingly entered clandestinity. 2
Associations of relatives of the disappeared were the first to call attention to this heinous crime, overcoming government infiltration, harassment, and even disappearances of their own members. 3 These associations [End Page 366] presented thousands of cases to the United Nations (UN) and to the Organization of American States (OAS).
In the mid 1960s, concern over the situation in Guatemala led the Inter-American Commission on Human Rights (IACHR) of the OAS to address the issue of forced disappearances through its monitoring of military and other state forces, and through its decisions on individual petitions alleging human rights violations. Following the brutal aftermath of the 1973 coup d’êtat in Chile, the United Nations strengthened its human rights mechanisms, particularly the Commission on Human Rights, leading to more forceful action regarding disappearances. Increased NGO participation at the United Nations also provided more visibility to the plight of victims and their relatives, and placed more pressure on the United Nations to respond.
A UN Working Group on Chile made an unprecedented investigative mission to that country in 1978, focusing particularly on cases of forced disappearances. In 1979, after the Working Group on Chile was dissolved, the UN Commission on Human Rights appointed two experts to study the “question of the fate of missing and disappeared persons in Chile.” 4 When the comprehensive expert was presented to the General Assembly in 1979, that body characterized the disappearances as a “continuous situation of gross and flagrant violation of human rights,” 5 and called on the Chilean government “to investigate and clarify the fate of persons reported to have disappeared for political reasons, to inform the relatives of the outcome, and to institute criminal proceedings against those responsible for such disappearances and to punish those found guilty.” 6 In 1980, the General Assembly noted its “deep concern about the lack of information on the numerous persons who have disappeared [in Chile], which continues to be a gross and flagrant violation of human rights,” and insisted on the need to investigate the allegations. 7
In December 1978, the UN General Assembly expressed its deep concern...