Entangling (to the extent possible) the complex relationship between enforced disappearance and death

It is undeniable that there are links – be they conceptual and hypothetical or material and factual – between the enforced disappearance and the death of a person. Enforced disappearance, per se, is characterized by a situation of ambiguity. By definition, forcibly disappeared persons are placed outside the protection of the law and their fate and whereabouts are unknown; hence, they could in fact be alive or dead. This grey area has been described as a “legal limbo” that turns the disappeared into a “non-person”.Footnote ⁸

The impossibility of determining with certainty the fate of disappeared persons generates in their relatives (and, arguably, in an even broader group of people) a condition known as ambiguous loss, defined as “an unclear loss with no official verification of life or death and thus, no closure”Footnote ⁹ and considered “the most stressful type of loss because there is no proof of finality”.Footnote ¹⁰ In other words,

Ambiguous loss affects individuals, families and entire communities.Footnote ¹² As recognized by international human rights mechanisms – albeit with different interpretative nuances – the impossibility of determining the fate and whereabouts of the disappeared person and the ensuing anguish and stress, along with the official indifference of authorities in the face of their suffering, make relatives of the disappeared persons victims in their own right of a treatment that may amount to torture or, at least, to inhuman or degrading treatment.Footnote ¹³

On the one hand, the circumstances described require us not to entirely discard the option of the death of the disappeared person and to interpret the State's obligations accordingly, including in terms of designing and carrying out policies and investigative or prosecutorial strategies. On the other hand, the same circumstances require us not to automatically equate enforced disappearance with death, in order to avoid unwanted consequences on multiple levels. On a psychological level, this forced equation would clash with the above-described ambiguous loss and, arguably, worsen the suffering of relatives. On a legal level, it would require applying presumptions (of death or life) in the absence of certainty, potentially leading to the qualification of a specific situation as death/homicide rather than enforced disappearance, triggering consequences such as the application of statutes of limitations.Footnote ¹⁴

Similarly, if a disappeared person is formally qualified as dead, this will have ramifications for the recognition of his or her relatives as victims and their access to measures of psychosocial support and reparations. While, as already mentioned, it is relatively undisputed that relatives of disappeared persons are also victims (and therefore rights-holders),Footnote ¹⁵ this is not always the case with regard to relatives of dead persons, who could therefore find themselves in a detrimental situation. A prime example of this unfortunate situation are the considerations put forward by the European Court of Human Rights (ECtHR) in the Janowiec and Others v. Russia case, whereby the Court rejected the applicants’ claim to be victims of inhumane treatment simply because they (rationally) should have known that their disappeared loved ones were dead:

In the reasoning of the ECtHR, since relatives must accept – including by virtue of the passing of time – that their loved ones are dead, they should overcome their emotions, irrespective of whether the mortal remains of their next-of-kin have not been duly located, exhumed, respected, identified and returned. Such an interpretation seems to leave very little space for the protection of and respect for the dead and would deprive a significant number of persons of a remedy, entailing obvious psychological and legal consequences.Footnote ¹⁷

Equally heavy – and undesirable – implications are triggered by the fact that, in many countries, access to measures of psychosocial support or reparation for relatives of disappeared persons is made conditional upon obtaining a declaration of death (obviously based on a presumption), even in the absence of any certainty on the fate and whereabouts of the disappeared.

On a practical level, the actions undertaken and the strategies designed to search for a disappeared person will vary, quite significantly, depending on whether they are planned and conducted under the presumption that the person sought is alive or dead, with the latter requiring specific measures in terms of protection.

The scenarios described above show that the relationship between death and enforced disappearance is all but straightforward, and that certain assumptions – and presumptions – carry heavy consequences that warrant in-depth analysis and additional consideration. A first point to note in this regard is that because the disappeared person might in fact be dead, adequate measures to ascertain whether this is the case are required, and they shall be guided by international standards and an overarching protective aim. Secondly, when applying presumptions (of life or death) in cases of disappeared persons, the criteria set by the Inter-American Court of Human Rights (IACtHR) in its judgment on the Radilla Pacheco v. Mexico case are sound and deserve to be taken into account.Footnote ¹⁸ In general terms, the IACtHR found that, in these cases, presumptions cannot be used to the detriment of the most vulnerable party – i.e., the relatives of the disappeared. Rather, the burden to validly invoke them falls upon the party that had the alleged control over the disappeared person and his or her fate – i.e., the State. In the specific case of Radilla Pacheco, the IACtHR referred to the presumption of death of a disappeared or missing person, finding that, in general, it is a presumption iuris tantum (i.e., a presumption of law alone, which is rebuttable) that admits evidence to the contrary. Moreover, the IACtHR held that

The above suggests that, although the use of presumptions in these cases is certainly allowed, it shall be done with a pro persona perspective, thus allowing rebuttal.

Finally, entangled in the complex relationship between death and enforced disappearance is a State's obligation that is directly related to the individual and collective right to know the truth.Footnote ²⁰ Principle 4 of the UN Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (UN Principles against Impunity), concerning “the victims’ right to know”, establishes that “irrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstance in which violations took place and, in the event of death or disappearance, the victim's fate”.Footnote ²¹ This provision – at least ideally – seems to neatly distinguish death from disappearance, nevertheless holding that the right to know the truth, in both cases, requires the determination of the victim's fate. In reality, however, in the case of enforced disappearance, the right to know the truth requires precisely the determination of whether the person is alive or dead and, in the latter scenario, the adoption of all necessary measures – including in terms of protection and respect – to identify the remains and return them to the family.

In this regard, in its General Comment on the right to know the truth, the Working Group on Enforced or Involuntary Disappearances (WGEID) emphasized that

In his report on the protection of the dead, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions acknowledged the existing link between enforced disappearance and death through the lens of the right to know the truth: “enforced disappearances … infringe upon the right to know the truth about the fate and whereabouts of loved ones, and also impede the dignified treatment of the dead”.Footnote ²³ Moreover, recalling the jurisprudence of the IACtHR, the Special Rapporteur emphasized that “part of the right to the truth is the right of family members to know the fate of their loved one and the location of the remains if the victim is deceased”,Footnote ²⁴ and that this right “includes, when the disappeared person is found to be dead, the right of the family to have the remains of their loved one returned to them and to dispose of those remains according to their own tradition, religion or culture”.Footnote ²⁵ Finally, focussing on cases of enforced disappearance where the victim is in fact dead, the Special Rapporteur aptly described the implications in terms of protection, in the sense that “because enforced disappearance prevents the possibility of a proper burial, this infringes upon the dignified treatment of the dead and the rights of the deceased's family”.Footnote ²⁶

It thus appears that, even if only through the application of presumptions, completely detaching death – and the protection of the dead – from enforced disappearance is not only impossible, but also undesirable. Likewise, entirely assimilating enforced disappearance with death is inaccurate and detrimental.

It is here held that the interpretation – and implementation – of the various State obligations in cases of enforced disappearance should be done in a way that adequately captures and reflects the uncertainty of the status of the disappeared, in order not to generate unwelcome – and sometimes irreparable – practical, legal and psychological consequences.

Searching for the disappeared

One of the areas where the ambiguity concerning the status of the disappeared is more evident is that of the search aimed at establishing their fate and whereabouts.

As mentioned above, the ICPPED is the first international human rights instrument which refers to States’ obligations with regard to the respect of the dead, and it does so mainly in two provisions related to the search for the disappeared.Footnote ²⁷ Article 24(3) of the ICPPED requires States Parties to take all appropriate measures to search for, locate and release disappeared persons and, in the event of their death, to locate, respect and return their remains. Along the same lines, Article 15, which refers to the obligation of cooperation among States Parties, establishes that States Parties must

This second provision is especially relevant in cases involving the disappearance – and potential death – of migrants, and the adoption of adequate measures – including to protect the dead – in this realm poses an additional layer of complexity, in view of the transnational dimension of the phenomenon.Footnote ²⁹ The provision is similarly relevant in cases of persons disappeared in the context of international armed conflicts, also entailing a transnational dimension.

Both provisions essentially reflect the fact that the disappeared person could be either alive or dead. In the former scenario, States must search for the person and ensure his or her release. In the latter, they are expected to locate, exhume, respect, identify and return the mortal remains. In both cases, where appropriate, States are expected to cooperate among themselves in order to fulfil their obligations and to provide information on the fate and whereabouts of the persons concerned. The wording of the ICPPED thus seems to confirm that the search for the disappeared must be performed in both scenarios, taking all necessary measures to realize the pursued aim. In particular, where there are mortal remains that could belong to the disappeared persons, States must adopt all the measures directed at ensuring the protection of the dead and, indirectly, through them, also that of the living and their right to know the truth.

If the scenario considered in the ICPPED is essentially neutral, this is not the case, at least prima facie, for the Guiding Principles for the Search for Disappeared Persons (CED Guiding Principles) adopted by the Committee on Enforced Disappearances (CED) in 2019.Footnote ³⁰ Principle 1 of the CED Guiding Principles takes a definite stance, which, if interpreted narrowly, could have far-reaching consequences. Pursuant to the principle, “the search should be conducted under the presumption that the disappeared person is alive, regardless of the circumstances of the disappearance, the date on which the disappearance began and when the search is launched”.

This principle speaks directly to the above-mentioned psychological implications for relatives of disappeared persons of considering – even in a merely hypothetical way – the disappeared as dead, and it echoes the legitimate demand of associations of relatives of disappeared persons across the globe to see those forcibly disappeared resurface alive.Footnote ³¹ However, its implementation could be problematic in practice, bearing in mind that different techniques must be applied when searching for someone who is thought to be alive or when locating a burial site or a mass grave. The search strategy can vary significantly depending on the premises from which it moves. Although, for the reasons mentioned above (i.e., avoiding re-victimization of relatives and duly reflecting their legitimate demand to see their disappeared loved one return alive), the CED Guiding Principles set a general presumption of life to conduct the search, it is difficult to see how, in practice, this could be done when, for instance, searching, more than forty years later, for a person who was already seventy years old when the disappearance began, or for someone who was last seen where it is known that people were killed and there is a mass grave. Conversely, it would not make much sense to search for a dead person when the disappearance began just a few hours or days before or where the disappeared is a newborn or a child, especially in contexts where it is known that there has been a pattern of enforced disappearances of children, followed by the falsification of documents and, oftentimes, illegal adoptions.Footnote ³² Hence, on the practical level, effective search strategies require those conducting the search to take into account the date on which the disappearance began or that on which the search commences and, in general, the circumstances of the disappearance, as these factors are crucial for assessing whether it is more appropriate to search for a person that is alive or a person that is dead, and to apply the most effective techniques.

There is therefore an – at least apparent – friction between the presumption that States are requested to apply and the measures to be taken in practice to ensure the effectiveness of the search. However, if the presumption set forth in Principle 1 of the CED Guiding Principles is regarded merely as iuris tantum, this allows the relevant parties to avoid the above-mentioned unwanted psychological consequences for relatives of the disappeared, while adapting the search strategy to the existing circumstances and therefore ideally avoiding equally undesired consequences on the practical level.

In a way, this is reflected across the rest of the CED Guiding Principles, wherein, besides the general rule set forth pursuant to Principle 1, other provisions seem to acknowledge that the disappeared might in fact be dead and that this should be duly taken into account when designing the search strategy, choosing the applicable techniques (including the use of specific new technologies)Footnote ³³ and adopting measures to ensure the protection of the dead. In this sense, Principle 2(4), which requires the search to respect human dignity, deals explicitly with the treatment to be given to the remains of a disappeared person. Principle 8(8), meanwhile, focuses on the search for disappeared newborns or children, who must most likely be searched for on the assumption that they are alive:

The two principles that, departing from either a presumption of life or the assumption of death of the disappeared, explicitly reflect the unavoidable ambiguity that characterizes enforced disappearance, and that should be taken into account also when designing the search strategy, are Principles 3(3) and 7. The former refers to both “release” and “return of the remains” of the disappeared as equally possible outcomes of the search process. Principle 7, recalling the continuing nature of the obligation to search for the disappeared, spells out separately when such an obligation could come to an end:

A similar approach can be found in Principle 22(b) of the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,Footnote ³⁶ which refers to the search among the measures of satisfaction to which victims are entitled. It indicates that the search must focus on “the whereabouts” of the disappeared in general; “the identities” of the children abducted; and “the bodies” of those killed, adding, with regard to the latter, that States must also provide “assistance in the recovery, identification and reburial of the bodies, in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities”.

Without referring to the application of presumptions (be they de iure or de facto), this principle seems to capture the most sensible approach to the search for the disappeared: in general terms, the inescapable ambiguity of this situation requires a determination of the whereabouts of the disappeared in the first place. Then, once elements are acquired with regard to the fate of the disappeared, different measures should be adopted, including those related to the protection of the dead.

It is noteworthy that, in its jurisprudence on urgent actions pursuant to Article 30 of the ICPPED aimed at establishing the fate and whereabouts of the disappeared, the CED has undertaken an approach that reflects the natural ambiguity of the situation.Footnote ³⁷ Article 30(3) of the ICPPED entrusts the CED with the power to request from States Parties the adoption of interim measures, with the aim of “locat[ing] and protect[ing] the person concerned”. The measures indicated to States Parties can vary, depending on the circumstances and the information submitted to the CED, and can aim at the protection of elements or pieces of evidence that could aid efforts to locate the disappeared person, including burial sites or mass graves (e.g., through the adoption of measures such as cordoning off the area).

In addition, Principle 7(4) of the CED Guiding Principles also foresees the – not infrequent – case in which the search does not yield concrete results and must end with a recognition of the impossibility of recovering the person:

Although Principle 7(4) is drafted in such a way as to reflect the fact that the disappeared could be either alive or dead, in practice, it would mostly apply in cases where there are enough elements to consider that the person is dead, but it is impossible to recover the remains (e.g., because they may have been incinerated or thrown into the ocean or some other large body of water).

The WGEID has frequently been confronted with this kind of situation and has set standards in this regard. In its report on its country visit to Peru, it emphasized that, in cases where clarification is difficult or impossible to attain (for instance, when the body of the disappeared person, for various reasons, cannot be found or recovered), “the State still has an obligation to investigate until it can determine by presumption the fate or whereabouts of the person”.Footnote ³⁹ In its General Comment on the right to know the truth, the WGEID added that

This has eventually been reflected in the criteria applied by the WGEID itself to clarify cases registered pursuant to its humanitarian procedure (i.e., the registration and communication to States of cases of enforced disappearance with the purpose of establishing the fate and whereabouts of a person):

In both cases, the chosen phrasing adequately reflects the fact that the disappeared person could equally be alive or dead, and that it falls upon the State to take all necessary measures to elucidate what happened, preserve evidence and, in the case of impossibility of recovering the person (or his or her mortal remains), at least to collect elements that allow the State to presume (de facto) the fate of the disappeared.

Exhumation, identification, respect for and return of the mortal remains of the disappeared

Having established that, in designing the strategies and policies to search for disappeared persons it is necessary to bear in mind that the disappeared could be alive or dead, and measures and responses should be tailored around the circumstances and directed at establishing the exact fate of the person (at least by presumption), this section reflects upon State obligations when it is actually known, or inferred, that the disappeared is dead.Footnote ⁴³

In this realm, the treatment inflicted on the dead is inherent to the violations both against the disappeared and against his or her loved ones. On the one hand, certain conducts (e.g., incineration, mutilation of the body, throwing the remains into the ocean or any other body of water) are directly related to one of the constitutive elements of the crime – i.e., the concealment of the fate and whereabouts of the disappeared. On the other hand, the lack of respect vis-à-vis mortal remains, and the ensuing impossibility of recovering, honouring and mourning them, is a way to prolong the uncertainty and the suffering of the relatives of the disappeared (and, in certain cases, of entire communities), also bearing in mind cultural customs and specific beliefs.

In the Blake v. Guatemala case before the IACtHR,Footnote ⁴⁴ the relatives of Mr Blake knew – from witnesses – that, after having been captured by members of a paramilitary group, he was brutally killed and his body was incinerated. Nevertheless, in the eyes of his relatives, Mr Blake was a victim of enforced disappearance and the IACtHR dealt with him as such, although his fate (i.e., the killing and incineration of his mortal remains) was known. In this regard, the Court noted that

Accordingly, the IACtHR found that this amounted to a violation of Article 5 of the American Convention on Human Rights (right to humane treatment) with regard to Mr Blake's relatives. In its well-established jurisprudence, the IACtHR has consistently maintained this approach, treating as enforced disappearances cases where the fact that the victim had been killed was known, but the remains had not been located. In subsequent judgments, the Court has also analyzed the consequences on entire (usually indigenous) communities of the impossibility, in cases of enforced disappearance and massacres, of locating, exhuming and respecting the mortal remains of the victims, finding a violation, besides Article 5, of Article 12 (freedom of conscience and religion) of the American Convention with regard to the entire community.Footnote ⁴⁶

A similar approach is followed by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, who has also held that, where relatives know that their disappeared loved one is dead but cannot obtain certainty and closure through the restitution of mortal remains, the

The ECtHR has found that only when the uncertainty as to the fate of the disappeared person lasts for a long time (without ever clarifying what “a long time” exactly means) can the case be regarded as an enforced disappearance.Footnote ⁴⁸ For its part, the Human Rights Committee has dealt with cases where the remains of the disappeared person have not been located, exhumed and returned to the family as executions and not as enforced disappearances.Footnote ⁴⁹ In the case of Milan Mandić v. Bosnia and Herzegovina, while the Committee found violations of the International Covenant on Civil and Political Rights, the chosen legal qualification of the case led to a more restrictive approach, as noted in the partially dissenting opinion of Mr Víctor Rodríguez Rescia:

These reflections confirm that the automatic equation of enforced disappearance to death, even when it is probable that the disappeared person is in fact dead, fails to reflect the complexity and ambiguity of the existing situation and can generate – besides a psychological trauma for the relatives of the disappeared – detrimental legal consequences. To prevent this outcome, full acknowledgment of the ambiguous nature of enforced disappearance is necessary, along with the adoption of measures that, bearing in mind that the victim may in fact be dead, allow for the location, exhumation, protection and respect of the dead, and, where feasible, the return of mortal remains to the family. This “balancing” exercise has ramifications also on the practical level, including the incorporation of a psychosocial approach in forensic workFootnote ⁵¹ and the application of international standards developed for the protection and treatment of the dead.Footnote ⁵²

A final question worth examining is whether the return of the mortal remains can be regarded as an autonomous right of relatives of disappeared persons,Footnote ⁵³ leaving aside instances, already dealt with above, where recovery of mortal remains is not physically possible – for instance, because they have been incinerated.

Principle 2(4) of the CED Guiding Principles subsumes the return of mortal remains to the obligation to search for the disappeared. The acknowledgement of the State's obligation suggests the existence of a corresponding human right:

Conversely, Principle 34 of the UN Principles against Impunity explicitly subsumes the identification and return of mortal remains to the family of the disappeared within their right to reparation:

Irrespective of whether it is a corollary of the – ongoing – obligation to search for the disappeared or of the – equally ongoing – obligation to provide reparation to victims of enforced disappearance, it thus seems that the location, exhumation,Footnote ⁵⁶ identification, respect for and return of the mortal remains of disappeared persons is a fundamental human right of relatives. In this regard, the WGEID provides the following indications:

However, international human rights jurisprudence on this aspect remains divergent. Indeed, in one specific case, the ECtHR recognized that the State should ensure the location and exhumation of presumed burial sites and referred to relevant measures to be undertaken (e.g, collection, storage and identification of remains and, where necessary, systematic matching through up-to-date genetic databanks).Footnote ⁵⁸ However, the ECtHR did not explicitly recognize the obligation of the State to return the mortal remains to the families.

In the already mentioned Janowiec case, where only partial exhumations of the mortal remains buried in various mass graves had been conducted,Footnote ⁵⁹ and relatives therefore claimed that their loved ones were to be considered as forcibly disappeared, far from regarding the lack of comprehensive exhumations as a violation of the State's obligations, the ECtHR looked at this as a circumstance that would allow relatives to presume the death of their loved ones – and therefore, as explained above, to strip them of their status as victims in their own right.Footnote ⁶⁰ Accordingly, the ECtHR did not even consider ordering as a measure of reparation the completion of the exhumations, or the identification or return of the mortal remains.

For its part, in the Massacres of El Mozote case, the IACtHR found that the lack of adequate and comprehensive exhumations directed at identifying all those buried in multiple mass graves and returning their remains to their loved ones amounted per se to a violation of their fundamental human rights, including the right to know the truth.Footnote ⁶¹ In the words of the IACtHR in another case, exhumations are an obligation of the State, and their carrying out bears consequences in terms of the duration of enforced disappearance:

In light of similar considerations, in the El Mozote case, the IACtHR ordered the State, as a measure of reparation, to

Finally, the IACtHR emphasized how the exhumation of remains is not only essential to clarify the fate and whereabouts of the disappeared, thus putting an end to the suffering of their relatives, but is also instrumental in providing

The adequate protection of the dead, along with their respect and related operations (including exhumation and identification), is therefore essential in disambiguating the fate of the disappeared and, as such, has reverberations on the legal qualification of the events and their corresponding investigation.

Investigation, prosecution and sanction

The legal qualification of the events weighs significantly on the conduct of investigations, the pressing of charges, and the prosecution and ultimately the sanction (or lack thereof) of perpetrators.

Enforced disappearance is a complex and continuous crime that, as noted by the IACtHR since its first judgment on the subject, must be understood and confronted in an integral manner.Footnote ⁶⁵ Recognizing the continuous nature of the offence has obvious consequences on the application of statutes of limitations for criminal proceedings, which will not run until after the fate and whereabouts of the disappeared person have been established with certainty.

As of today, only a few States comply with the obligation to codify enforced disappearance as a standalone crime under domestic law.Footnote ⁶⁶ More States reproduce the definition of enforced disappearance as a crime against humanity enshrined in the Rome Statute of the International Criminal Court, which applies only to enforced disappearances committed as part of a widespread or systematic attack against any civilian population and would not encompass isolated instances.

The majority of States do not codify enforced disappearance as such, and would therefore refer to offences such as illegal deprivation of liberty, abuse of power, kidnapping, unlawful detention or, in some cases, torture or homicide. However, while these offences may form part of a type of enforced disappearance, none of them are sufficient to cover all the elements of enforced disappearance. Moreover, some of these offences are not continuous in nature and, as such, would be subjected to the application of statutes of limitations, thus facilitating impunity of perpetrators. Countries that find themselves in this situation will necessarily have to investigate cases of enforced disappearance using other offences, and besides the potential legal consequences in terms of prescription, there would be also practical and psychological implications similar to those described above for the search for the disappeared.Footnote ⁶⁷

For countries that have the standalone crime of enforced disappearance, relevant to this contribution are the criteria used to determine when such an offence should be used, instead of homicide or arbitrary execution, for the purposes of investigation and prosecution, bearing in mind that in many circumstances, both illegal conducts occur (e.g., the victim of an enforced disappearance is killed during captivity).

In general, for the reasons illustrated in the previous sections, enforced disappearance cannot be subsumed under the crime of homicide, nor is the latter an integral part of enforced disappearance. This means that both crimes should be investigated and the perpetrators of both must be prosecuted and sanctioned.Footnote ⁶⁸

In cases where the respondent States have insisted – in the absence of the mortal remains of the victims – in having the underlying conducts qualified as homicide instead of enforced disappearance, the IACtHR has set forth useful criteria to distinguish the conducts:

These criteria should also be considered by domestic authorities in deciding how to qualify the events, bearing in mind the ramifications that this will have on the applicable statutory regulations. Indeed, the fact that in certain countries relatives of disappeared persons have obtained court decisions or certificates declaring their loved ones dead, while the fate and whereabouts of their loved ones has remained uncertain, might also lead to relevant changes in the legal qualification of the conduct for the purposes of ongoing investigations and proceedings.

Reparations and psychosocial support conditional upon the declaration of death of the disappeared

Another area where the negative consequences of the undue and fictitious equation between enforced disappearance and death and the casual application of presumptions are especially problematic is that of psychosocial support and measures of reparation.Footnote ⁷¹ At the domestic level, access to these measures has often been made conditional upon obtaining a certificate or a declaration of death of the disappeared person.

Having to declare a loved one dead, despite not knowing his fate or whereabouts, in order to obtain financial support or redress or to settle administrative, family and welfare matters is the quintessential denial of the nature of enforced disappearance – so much so that it has been recognized as a form of inhumane and degrading treatment for the relatives of the disappeared.Footnote ⁷² International human rights mechanisms, including the WGEID and the CED,Footnote ⁷³ have expressed themselves against this practice, indicating that States should not require certificates of (presumed) death, but rather certificates of “absence by reason of enforced disappearance”, which would have similar legal effects and would allow the authorities to regulate social welfare, financial matters, family law and property rightsFootnote ⁷⁴ while acknowledging the real nature of the underlying events and avoiding undesirable psychological and legal consequences.

Both the WGEID and the CED have also clarified that the expedition of certificates or declarations of absence by reason of enforced disappearance shall not interrupt or close the search activities and the investigations to determine the fate and whereabouts of victims and to identify those responsible for the crime. On the contrary, no matter how administrative, family, financial, social welfare and reparation issues have been settled, States shall continue to investigate all cases to determine the fate and whereabouts of the disappeared and to ensure accountability of those responsible for the commission of enforced disappearances. Moreover, the WGEID has held that “as a general principle, no victim of enforced disappearance shall be presumed dead over the objections of the family”.Footnote ⁷⁵

Finally, a reflection on the relationship between the victims’ right to reparation and the death of the disappeared person is in order. Pursuant to Article 24(4–5) of the ICPPED, the right to adequate measures of reparation is granted to all victims, thus including the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance. Accordingly, relatives of the disappeared person are entitled to receive reparation for the harm suffered (including compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition) irrespective of whether the disappeared is alive or dead. The wording of Article 19 of the 1992 Declaration on the Protection of All Persons from Enforced DisappearanceFootnote ⁷⁶ could appear slightly more problematic:

While the first part of the provision recognizes that both the disappeared persons and their families are entitled to obtain redress, the second sentence seems to make compensation for dependants of the disappeared conditional upon the death of the latter. This reading of the provision would be contradictory and, as noted by the WGEID, Article 19 of the Declaration must be interpreted taking into account the developments in international law. In this sense, the WGEID

The WGEID has added that “social allowances and/or measures of reparation should not be made conditional on the requirement that the relatives of the disappeared person produce a death certificate”.Footnote ⁷⁸