Conceptualising Disappearances in International Law

Abstract

Enforced disappearance is one of the most serious crimes, prohibited across several regimes of international law, including human rights, humanitarian law and criminal law, yet Latin American governments and officials frequently avoid legal accountability for these violations. The dynamics of disappearances in post-transitional democracies call for a reconceptualisation of the international human rights framework, by reconsidering the meaning of state acquiescence. This chapter argues that a relevant and effective framework must embrace a contextual analysis and foreground the positive obligations of states to search and investigate these crimes, using generally accepted principles found in due diligence jurisprudence to measure the legal adequacy of the state’s responses to reported disappearances. Stretching the legal framework is necessary to disrupt the benefits of impunity, which violate the rights of victims, allow disappearances to thrive, and harm societies by hiding the truth.