3.1 Introduction
In 2019, the Committee on Enforced Disappearances (hereinafter the Committee or the CED) adopted the Guiding Principles for the Search for Disappeared Persons (hereinafter the Guiding Principles or the Principles). The present chapter, written by the two rapporteurs appointed by the Committee for preparing the Guiding Principles, in its first part describes the considerations that led the Committee to discuss and redact these Guiding Principles, starting from the reaffirmation of the search of disappeared persons as an autonomous international human rights obligation under the Convention. An important element that took the CED to think about the need of some Guiding Principles for the search was the high number of ‘Urgent Actions’Footnote 1 it had received under article 30 of the International Convention for the Protection of all Persons against Enforced Disappearances (hereinafter the Convention or the ICPPED). These urgent actions reflected, in the vast majority of cases, a dramatic failure of the authorities to comply with the obligation to search, reflected in deficient norms, inadequate institutions, lack of strategy to search and lack of cooperation with the victims. The dialogues held with States under article 29 of the ICPPED also gave the Committee valuable information on the deficiencies of the search in various countries. The Committee, following its obligation under articles 30.3 and 30.4 of the Convention to improve the search mechanisms, came to identify manifold obstacles to effective and appropriate search efforts. So, after just five years since it started functioning, the Committee decided, in March 2016, that the moment had arrived for it to give an answer to the urgent need of victims of forced disappearances to search for their loved ones and therefore to study more in depth the obligation to search in order to determine its content and scope with a view of adopting an instrument that would give an answer to the pressing need of victims of forced disappearances to search for their loved ones and at the same time be useful for overcoming obstacles that the Committee has already identified.
The Committee’s own experience was enriched, once the decision to draft a document on the issue had been taken, through a highly participative process that preceded the adoption of the Principles. During more than three years, the Committee collected, through various conferences as well as a formal call for input, opinions and proposals on measures to strengthen the search processes. This input came from victims’ organizations, National Human Rights Institutions (NHRI), NGOs, States, bodies of the UN and the Inter-American system, the International Committee of the Red Cross (ICRC) and academics. The final document (CED/C/7, 8 May 2019)Footnote 2 has been widely published and, so far, translated into the six official UN languages and three more.
The first part of this chapter reviews how the Committee reaffirmed the search of disappeared persons as an autonomous international human rights obligation under the Convention in the context of urgent actions and dialogues with States, as well as by holding discussions among Committee members and thematic debates with renowned experts. This part of the chapter also addresses the obstacles the Committee identified to an effective and appropriate search and describes the highly participative process that preceded the adoption by the Committee, in April 2019, of the Guiding Principles.
The second part of the chapter presents a first balance of the impact that the Principles have had, three years after their adoption as a UN document (2019–2022),Footnote 3 shaping public policies of States (member States of the ICPPED as well as non-State parties) and international bodies, of how they found their way into national and international jurisprudence and legislation, as well as in academic literature and, last but not least, in civil society.
3.2 The Reasons That Led the Committee on Enforced Disappearances to Adopt the Guiding Principles for the Search for Disappeared Persons
3.2.1 The Obligation to Search for and Locate Disappeared Persons in the Convention for the Protection of all Persons from Enforced Disappearances
In the drafting of the Convention, there was agreement among States on the right of victims to know the fate and whereabouts of the disappeared person. To protect this right, the Convention enshrines the obligation of States to search for the disappeared person, addressing it not in a single article, as it did with the obligation to investigate (Art. 12), but in several articles (15, 19.1, 24.2 and 24.3, and 25.2 and 25.3). From this perspective, it might be misunderstood that the Convention would give less weight to the obligation to search and locate than to the obligation to investigate.
However, the international obligation to search for and locate disappeared persons is an autonomous one and is well developed throughout the Convention. The obligation to take all appropriate measures to search and locate disappeared persons, including that of cooperating among States and affording one another the maximum mutual assistance (article 15), is specified in more concrete obligations according to different situations, depending on whether the person is found alive, with another identity or dead. In the first case, the Convention establishes the obligation to release the person (articles 15 and 24.3). In the second case, related to the wrongful removal of children who are subjected to forced disappearance, or children whose father, mother or legal guardian is subjected to forced disappearance or children born during the captivity of a mother subjected to forced disappearance, States must identify them and return them their identity (articles 25.2 and 25.3). When the person is found dead, States have the obligation to exhume, identify, respect and return the body (articles 15 and 24.3).
The autonomous nature of the search is also reflected in the Convention when establishing that personal information collected or transmitted in the framework of the search shall not be used for purposes other than the search, without prejudice to the use of such information in criminal proceedings relating to the crime of forced disappearance (Art. 19). This provision can only be explained if the drafters of the Convention had in mind the autonomy of the search in relation to the criminal investigation.
The search as an autonomous international obligation is also manifest in the Convention by assigning to the Committee a specific mandate to urgently examine the petitions presented on behalf of a disappeared person in order for the State to search for and locate the person (article 30).
The autonomous nature of the search can also be seen in the provision of the Convention that establishes expressly the right of victims to know the fate of the disappeared person (article 24.2). To guarantee this right, conducting a criminal investigation is not enough. Only a specific obligation to conduct a search can guarantee that locating the disappeared person will be an integral part of the actions undertaken by the authorities. Accordingly, the Convention establishes that urgent action procedures will be kept open as far as the fate of the person being sought remains unresolved.
Under the International Convention, the obligation of States to search for and locate disappeared persons is clearly established as different from (yet related to) the obligation of States to conduct without delay a thorough and impartial investigation of the crime of forced disappearance, as stated in article 12.Footnote 4
3.2.2 The Obligation to Search for and Locate Disappeared Persons in the Work of the Committee on Enforced Disappearances
Receiving and considering urgent actions and monitoring States’ compliance with the obligations established in the Convention are two mechanisms enshrined in the ICPPED that allow the Committee to receive information from victims, victims’ organizations and NGOs as well as from States. Information received through these mechanisms enables the Committee to acquire knowledge regarding legal frameworks and institutional resources to conduct search processes as well as budgetary and personnel requirements of institutions charged with the search. This information has nourished the Guiding Principles.
3.2.2.1 Urgent Actions
By the time the Committee decided to create a working group charged with preparing a concept note on the obligation to search for the disappeared persons in accordance with the Convention and the jurisprudence of the CED,Footnote 5 and while the process of preparing the principles was underway, requests for urgent actions continued to increase. In 2017, the Committee received 86 requests for urgent actions, and 118 in 2018. As of April 2019, it had received 659 requestsFootnote 6 for urgent actions from 15 countriesFootnote 7 since the Committee was established.Footnote 8
Through the urgent action mechanism, the Committee received valuable information illustrating obstacles in the searching processes related to institutional weaknesses and disrespect and ill treatment of victims.Footnote 9
Institutional weakness often is expressed in deficiencies such as lack of authorities charged specifically with the search; fragmentation among investigations and lack of coordination among agencies, which cause excessive delays in the search processes; conducting the search without a strategy and carrying out isolated actions that are not part of a plan or a strategy previously defined; authorities that don’t act unless relatives or representatives of the disappeared person take initiative; requests for information that remain unanswered and authorities charged with supervising those requests that don’t take action; on-site investigations that are not carried out because the authorities do not have security measures; or even authorities charged with the search that are involved in the disappearances. In addition, the urgent action procedure brought to the Committee information about families and relatives of disappeared persons facing difficulties participating in the search.
Other problems seen by Committee members through urgent actions are those related to disrespect and ill-treatment of persons searching for their loved ones. On several occasions they have been prevented by authorities from formally denouncing the disappearance of a relative or have been contacted by the authorities in a manner that re-victimizes them. Authors of requests for urgent actions have faced threats, intimidation, pressure and reprisals.
The existence of these obstacles was confirmed during the process of drafting the Guiding Principles, in meetings and workshops with victims’ families, human rights organizations, experts and even with State institutions.
3.2.2.2 Dialogues with States and Concluding Observations
The obligation to search for and locate disappeared persons has been reaffirmed by the Committee in its concluding observations, issued after receiving States reports, information from victims and NGOs and having held constructive dialogues with States parties. Before the approval of the Guiding Principles, the Committee had interpreted the obligation to search and reaffirmed its autonomous nature in several concluding observations.
In line with the Convention, the Committee has recalled that determining the whereabouts of victims includes searching for and locating disappeared persons without delay.Footnote 10 It has also reaffirmed that the search must be launched even without a formal complaint.Footnote 11 For securing the effectiveness of the search, the Committee has recommended the adoption of measures such as the preservation and protection of mass graves and of all other sites where there is a suspicion that disappeared persons might be found.Footnote 12
Furthermore, based on the situation seen by the Committee in dialogues with Spain, Iraq, Tunisia, Colombia, and Bosnia and Herzegovina, in the context of reporting processes, the Committee has recommended that States should allocate sufficient human, technical and financial resources for the search processes.Footnote 13
Considering situations in Mexico, Colombia and Honduras, the Committee highlighted the importance of adopting search measures to increase the chances of finding persons alive. The Committee also emphasized the importance of continuing the search until the fate of the disappeared person has been established.Footnote 14
3.3 A Highly Participative Process Led to the Approval of the Guiding Principles by the Committee on Enforced Disappearances
After the two rapporteurs appointed for preparing the Guiding Principles presented the first draft to the Committee, in November 2018, it set up a consultative process and invited all interested stakeholders to submit written contributions: families of disappeared persons and their associations; State parties; NHRI; special procedures of the United Nations, such as the WGEID, and regional human rights organizations, like the Inter-American Commission on Human Rights (IACHR); civil society organizations; experts and academics.
The Committee received a total of forty-six contributions, from four continents, that were presented in Spanish, English, French and Arabic. There were twenty-eight contributions from organizations of victims of forced disappearances and civil society organizations,Footnote 15 one from a NHRI,Footnote 16 one from United Nations offices,Footnote 17 two from specialized UN agencies,Footnote 18 nine from State parties to the ConventionFootnote 19 and three from academia.Footnote 20
From 2016 to 2019, several workshops were organized in Colombia, Mexico and Germany, where many persons and national, regional and international organizations presented a variety of proposals that nourished the Guiding Principles. All these contributions were organized and systematized by a team of experts led by Gabriella Citroni, renowned human rights lawyer and now member of the Working Group on Enforced and Involuntary Disappearances.
Throughout the process that preceded the adoption of the Guiding Principles, families of the disappeared persons, persons and organizations involved in the search processes as well as experts agreed that an instrument of a more practical nature such as a set of principles aimed at solving concrete problems was a better tool than an instrument only interpreting the obligations established in the ICPPED.
Based on all the information gathered in the consultation process, the two rapporteurs redacted and revised a draft of the Guiding Principles for the Search for Disappeared Persons that was discussed and approved by the Committee in its session of April 2019. The Guiding Principles for the Search for the Disappeared Persons are available in the six official languages of the United Nations (Spanish, English, French, Russian, Arabic and Chinese) and so far also in German, Nepali and Serbian.
3.4 The Impact of the Guiding Principles for the Search for Disappeared Persons in State Norms and Actions, in Judicial Decisions, in Civil Society and in Academic Discussion
The Guiding Principles for the Search for Disappeared Persons, as shown above, have been developed in a highly participative process of many consultations with all kinds of stakeholders over more than three years. Since the demand for more effective search of disappeared persons and a clear formulation of States’ obligations to search came to the Committee mainly from victims and organizations from Latin American State parties, especially Mexico, it is no surprise that in the beginning the Principles resonated in Mexico more than in any other country. It was in Mexico where they were first presented by the Committee to a broader public.Footnote 21 The OHCHR Office in Mexico, continuing its permanent support of the Committee in the preparation of the Principles, published together with the Office of the National Ombudsman for Human Rights (Comisión Nacional de Derechos Humanos – CNDH) an illustrated booklet of the Principles, which has been widely distributed.Footnote 22 With the support of the German agency for economic cooperation (GIZ) the 16 Principles were presented as videos through the voices of different personalities (including Michelle Bachelet,Footnote 23 who by then was the High Commissioner for Human Rights) on public screens in Mexico’s subway and other places.Footnote 24
Responding to much input also from Colombian organizations, manifested in several workshops in Bogotá, the Principles received also public attention in Colombia and other Latin American countries. Although to a lesser extent, thanks to the efforts of the Asian Federation Against Involuntary Disappearances (AFAD) and the International Coalition Against Enforced Disappearances (ICAED), the Principles were echoed also in the Asian Region, for example, through an ICAED conference in Nepal in May 2019 or in February 2020 in Beirut, with the support of the Centre Libanais des Droits Humains (CLDH) and the Fédération euro-méditerranéenne contre les disparitions forcées (FEMED). Nevertheless, in accordance with the forces promoting the drafting of the Principles, the reception of these is still more visible in the Latin American region than in the rest of the world.
In the following sections, we will give an overview and outstanding examples of the impact of the Guiding Principles, considering their inclusion in legal and administrative texts as well as decisions by national and international bodies, their use by family and victims organizations and human rights defenders and organizations involved in the search of the disappeared and finally in an already rich academic discussion.
With regard to the impact of the Principles in national level decisions, we will present them starting with the countries where there have been more abundant references to the Guiding Principles in legal, administrative or judicial decisions. All the countries mentioned in the corresponding section are from Latin America, given that the demand for a more effective search of disappeared persons came to the Committee from organizations and victims from Latin American countries, as we mentioned before, and therefore, after the approval of the Principles, public debate involving legislative, administrative and judicial institutions was more intense than in other regions.
3.5 Impact of the Guiding Principles in Legal and Administrative Texts and in Judicial Decisions by National Bodies
While the Bournemouth Protocol has already gained much attention as a guideline that sets standards for the investigation of mass graves, it is still a civil society document. The Guiding Principles, as an official UN document, have already been referenced to in several legal documents and courts or treaty body decisions.
3.5.1 Mexico
Already in August of 2019, the Federal Government of Mexico made a public pledge to apply the Guiding Principles as part of its public policies against forced disappearances.Footnote 25 The National Human Rights Commission (CNDH), the institution created in accordance with the Paris Principles, has edited, together with the UN Office of Human Rights in Mexico, a printed popular version of the Principles that has been very helpful in the outreach, even beyond Mexico in other Spanish language countries.Footnote 26
The National Search Commission (CNB), the extraordinary search institution mandated in 2017 by the General Law on Forced Disappearance,Footnote 27 had already been vocal in the process of drafting the Guiding Principles and integrated them in many ways in their policies and norms. Soon after their adoption, the director of the CNB organized a formal outreach to all thirty-two Search Commissions in the federal States. When, after long debates in 2020, the basic Protocol that norms the activities of the CNB and the other institutions that have duties related to the search of disappeared had finally been adopted,Footnote 28 the basic norm established that the Guiding Principles ‘must be transformed into concrete actions of specific authorities which can guarantee, in practice, the right of every person disappeared or not found to be searched’. A year later, an additional protocol was adopted, dealing in particular with disappearances of children and young adults, which again refers to the Principles as basic orientation.Footnote 29 Beyond these basic protocols, the Guiding Principles have become a permanent reference in many documents and internal guidelines of the CNB and some federal State search commissions.Footnote 30
In June 2021, the Supreme Court of Mexico rendered a landmark decision in which, among other important aspects, it defined the international obligations of the Mexican State in view of the human rights treaties to which it is a party.Footnote 31 Extending the jurisprudence referring to the Views of Treaty Bodies on individual complaints, the Court declared in this decision that also the recommendations of the CED responding to requests for ‘urgent actions’ on behalf of disappeared persons in Mexico are binding for the Mexican authorities, which implies that their fulfilment is also subject to judicial and constitutional control. Substantiating this victims-oriented approach, the Court found that in international human rights law and particularly in the Convention there existed a right to be searched for and that this right includes the duty for the State to comply with the urgent actions remitted by the CED, even when this procedure (Art. 30 of the Convention) is apparently of only a humanitarian nature.Footnote 32 In their unanimous Judgment, for the members of the Court ‘it is clear that the search and its results constitute the essence of the right not to be forcibly disappeared and that they provide content and substance to the duties to prevent, investigate and repair the violations of human rights and their corresponding rights to the truth, justice and reparation’ (para. 107).
In this path-breaking decision, the Supreme Court not only declared the Urgent Actions of the CED obligatory. It also found that the Principles have to be attended and observedFootnote 33 by the Mexican State, quoting the introduction to the Principles, particularly the statement that they ‘seek to consolidate good practices in searching effectively for disappeared persons, arising from States’ obligation to search’ (para. 2 of the Introduction). In the following paragraph, the judges continue, referring now in detail to ten of the Principles they consider particularly relevant for their argument (para. 106).
Not in every case do the courts adopt fully the progressive pro persona language. In a case before the Higher Court of the federal State of Coahuila, a State with a particularly sombre record of disappearances, the majority of the Court rejectedFootnote 34 the draft sentence redacted by the judge-rapporteur, which was oriented in many parts by the Guiding Principles.Footnote 35
However, in 2022, Coahuila adopted an important constitutional reform, containing a whole section on the search of persons. The corresponding article 115Bis of the reformed constitution determines that the search must be carried out in accordance with international treaties, and particularly the Guiding Principles, which are written out in much detail in this paragraph.Footnote 36
The Supreme Court’s seminal sentence had a direct impact in a March 2022 initiative of the majority party in the National Parliament (Congreso de la República) aiming at adding three more paragraphs to Art. 17 of the Mexican Constitution in order to establish a ‘Right to be searched’ in cases of Forced Disappearance. The proposal copies language of the Principles and declares the right to be searched for as an autonomous right, distinct from the right to an investigation. In the argumentative part, it quotes large passages of the Supreme Court’s decision, including one where the Court cites the Principles.Footnote 37
The Principles have been adopted in norms and decisions in several more of the federal States that comprise the ‘United States of Mexico’. In December 2019, the Congress of the Capital District adopted a Search Law for the City of Mexico, which established that all the measures and procedures foreseen in this Law shall be guided by a series of principles that have to be in line with the General Law on forced Disappearances and with the Guiding Principles of the CED.Footnote 38 The Human Rights Commission of Mexico City (CDHDF), too, relies for many of the definitions used in their decisions (recommendations) on those developed in the Guiding Principles.Footnote 39
In October 2022, the Supreme Court of Justice of Mexico, together with the Federal School for Judicial Training, published a manual on the disappearance of persons. Various chapters mention the Guiding Principles, in particular one dedicated to forced disappearances in the United Nations Human Rights System.Footnote 40
3.5.2 Colombia
During the drafting process of the Principles, in Colombia, too, several consultations were held with different stakeholders about the text of the Guiding Principles. The Colombian government, in its latest report to the CED, committed itself to ‘continue its efforts to implement the Guiding Principles for the search for disappeared persons’.Footnote 41 The most important avenue for this implementation are the institutions created following the mandate of the Peace Accord of 2016, in 2017, as parts of a comprehensive system for the implementation of the principal goals of the Peace Accord: The Integral System for Truth, Justice, Reparation and Non-Repetition (SIVJRNR for its Spanish denomination).Footnote 42 Within this System, there are two organs with specific responsibilities regarding the search of disappeared persons (with both mandates limited ratione temporis to the period of the armed conflict):
The Special Jurisdiction for the Peace (JEP for its Spanish denomination).Footnote 43 The JEP is charged with the investigation of grave crimes committed during and in relation to the armed conflict and to try, under certain conditions, those responsible for these crimes. So, it is an extraordinary judicial organ, added to the existing (and continuing) regular organs of the justice system, the prosecutors, and the different kinds of Courts.
The second institution is a non-judicial body, the Special Unit for the Search for Persons reported missing in the context of and due to the armed conflict (UBPD for its Spanish denomination).Footnote 44
Both institutions have made efforts to integrate the Guiding Principles in their endeavours to find the disappeared persons and meet the need of the victims,Footnote 45 with a particular emphasis on Principle 13, which demands a constructive relationship between those institutions whose work should be mutually reinforcing. Indeed, both institutions have adopted the Principles in the design of their respective policies. The JEP, who had a representative participating in one of the Colombia workshops during the drafting process of the Principles, includes them in its list of ‘national and international norms and jurisprudence’ that orient its work.Footnote 46
The UBPD whose mandate is exclusively directed towards the search is even more explicit. It made a pledge before the CED to observe the Guiding Principles in the implementation of its mandate and actions.Footnote 47 And it made many efforts to meet this pledge. Already in its first National Search PlanFootnote 48 of 2020, it refers to the Principles as one of the international standards to observe and makes systematic use of the Principles for the definition of the needs of the victims and the strategies developed by the UBPD. In its internal guidelines on specific aspects of its work, the UBPD also refers to the Guiding Principles as part of their normative framework, such as in the Guidelines on Victims ParticipationFootnote 49 or the Guidelines on a Differential Approach in the search for children and youth.Footnote 50 In May 2021, when news circulated about numerous forced disappearances in the context of social mobilizations, the UBPD published a statement on international standards on guarantees against this crime, again quoting the Principles along with the Convention.Footnote 51 Also in oral statements, the first director of the UBPD made frequent reference to the Principles. They form without doubt part of the institutional culture of the UBPD. In June 2022, the Colombia Office of the OHCHR supported this effort of the UBPD through a much-publicized public conversation between the director of the Office, Juliette De Rivero, and the then director of the UBPD, Luz Marina Monzón, on the orientation that the Principles provide for the search.Footnote 52
Another institution in charge of the protection of human rights in Colombia is the Ombudsperson (Defensor del Pueblo). On the occasion of the International Day of the victims of forced disappearance, the Ombudsperson declared on 30 August 2021 that the institution will push on the Principles through a national campaign.Footnote 53
With the aim of building a route for finding all persons that have been subjected to forced disappearances, on 10 March 2023, the mayor of Buenaventura, a town in the Pacific coast of Colombia with high levels of serious human rights violations, adopted a decree creating an inter-institutional space for fighting against forced disappearances. The decree includes in its considerations several parts of Principle 3 of the Guiding Principles, which affirms that the search should be governed by a public policy.Footnote 54
3.5.3 Peru
In Peru, the search for the persons disappeared during the years of internal war and political violence has been entrusted to a special department within the Ministry of Justice (DGBPD for its Spanish denomination).Footnote 55 It is in charge of designing a National Plan for the search of persons disappeared during the years 1980–2000. In 2021, the DGBPD revised its first Plan and adopted a larger Plan for the forthcoming years up to 2030.Footnote 56 This governmental document ‘takes its direction from the guiding principles for the search for disappeared persons’Footnote 57 and integrates literally all of the 16 Guiding Principles, declaring them part of the Plan and refers in several details directly to them. In another important document for its work, the guidelines for the psychosocial accompaniment of the families of disappeared persons,Footnote 58 the DGBPD had also declared that the Guiding Principles form part of its legal basis.
3.5.4 Chile
With a view towards the fiftieth anniversary in 2023 of the coup d’état of Augusto Pinochet, the government of President Gabriel Boric decided to present a National Plan for the search of the persons disappeared during the dictatorship, to be executed by the Human Rights Program (Programa de Derechos Humanos – PDH) of the Ministry of Justice and Human Rights. In October 2022, the drafting process of the Plan was opened to a comprehensive dialogue with family and victims’ organizations as well as experts from other countries. The first project presented by the PDHFootnote 59 was explicit in its reference to the Guiding Principles, particularly to the rights of the victims to participate in the search as stipulated in Principles 3.5 and 5.1. The PDH held consultations with experts about the implementation of the Principles. The National Plan for Search, Truth, and Justice, intended to search for those who were subjected to forced disappearances during the dictatorship, was signed and launched by President Boric on a symbolic day, 30 August 2023, the international day of the victims of enforced disappearances. The final version of the National Plan again has numerous and detailed references to the Guiding Principles in support of the dispositions of the Plan.Footnote 60 According to this document, the Guiding Principles are ‘a basic reference for developing models for the search’ and ‘legitimize and guarantee the efforts of the families and their social position as agents of the search’.Footnote 61
3.6 Impact of the Guiding Principles in International Organizations
3.6.1 United Nations
The United Nations, as the tutelary organization on all the treaty bodies, including the CED, has made many efforts, in Geneva as well as through their regional and country offices, to support the drafting process and to promote their diffusion and application. In addition to using the Principles in the context of urgent actions as mentioned above, the CED has used them in its follow up concluding observations related to Colombia to encourage ‘the State party to systematically incorporate the methods of the guiding principles for the search for disappeared persons in the design and implementation of comprehensive search strategies’. It also referred to the Principles in its report after the visit to Mexico in February 2022, the first visit under article 33 of the Convention, that allows the Committee to visit a country after receiving reliable information indicating that a State Party is seriously violating the Convention.
The Committee has also invoked the Guiding Principles for issuing recommendations in its concluding observations. After noting that an ordinance in Switzerland is not fully in line with the Convention, it recommended that the State, ‘drawing the attention of the State party to guiding principles’,Footnote 62 make the necessary amendments to the ordinance, that is, establishing a twenty-four-hour response time for any search, instead of the six days mentioned in the Ordinance or establishing safeguards to ensure that any person who may be involved or has links with a person involved in a forced disappearance ‘does not participate in information gathering and is not in a position to influence the course of the investigation’. In this way, the Committee recalled principles 6 and 15. The Committee has also recommended the States of Brazil, Niger and Mali ensure that its efforts to search for disappeared persons or that the search procedures implemented are aligned, in accordance or consistent with the Committee’s guiding principles for the search for disappeared persons.Footnote 63
In its first General Comment, on enforced disappearances in the context of migration, the Committee affirmed that for the purpose of ensuring the ‘effectiveness of the search, States parties should implement the Committee’s Guiding Principles’.Footnote 64
Naturally, the ‘sister body’ of the CED, the WGEID, which had already given advice during the drafting process, also takes up the Guiding Principles regularly as orientation in their dealings with countries that are not State Parties to the ICPPED.Footnote 65
In Mexico, the local branch of the OHCHR was extremely helpful not only supporting the drafting process of the Principles but also its dissemination. As mentioned, the Office printed an illustrated booklet with the 16 Principles, which was widely distributed even beyond the Mexican borders. And it cooperated in the production of a video on each one of the Principles that have been shown on screens in public spaces like the metro.
3.6.2 Inter-American Human Rights System
The Inter-American Commission on Human Rights (IACHR), which had already participated in the consultation on the draft of the Principles, included in their joint statement on behalf of the International Day of the victims of forced disappearance in 2021 an appeal to ‘apply’ the Guiding Principles.Footnote 66 For the same purpose of commemorating the International Day of the victims of forced disappearances in 2022, the IACHR together with the CED and the WGEID called on States ‘to adopt comprehensive policies on enforced disappearances that seek to make the rights to truth, justice, and reparation a reality’ adding that those policies ‘should also contemplate the economic and psychosocial impact that the disappearance and search has on victims’ families, particularly women’, and recalling that ‘the CED’s Guiding Principles note that it is States’ duty to assess and provide the support needed by families during the search process. They should also require the search to follow a differential approach and be undertaken from a gender perspective and with adequately trained personnel’.Footnote 67
The principles were also mentioned in at least one country report of the Inter-American CommissionFootnote 68 where the Commission refers to Principle 3 (need of a public policy) to ask Brazil to structure its efforts in a coherent way (para. 407). The OAS to which the IACHR belongs had been asked by Peru to include in the long chapter of its regular Human Rights Resolution an express invitation for the member States to take the Guiding Principles as the source for their policies.Footnote 69 Although this direct mention did not make it into the final more concise text,Footnote 70 the Peruvian proposal showed the interest of governments in the Principles.
On its part, the Inter-American Court of Human Rights had mentioned the Guiding Principles in some of the latest cases related to forced disappearances. In Garzón Guzman v. Ecuador, the Court referred to principles 6 and 13 to reaffirm that the search must be initiated even without a formal complaint and that the search of the disappeared person and the criminal investigation should be mutually reinforcing and the comprehensive search process should be conducted with the same effectiveness as the criminal investigation.Footnote 71 In Familia Julien Grisonas v. Argentina, the Court resorted to the Guiding Principles to reaffirm the right of victims, representatives or any person authorized by them to participate in the search and to have access to information on the action taken and on the progress and results of the search.Footnote 72 In Movilla Galarcio v. Colombia and Tabares Toro v. Colombia, the Court deemed relevant that the Guiding Principles be considered in the implementation of the compliance with the reparation order given by the Court to establish the whereabouts of Mr Movilla and Mr Tabares, respectively, and expressly indicated the principles most relevant to each case.Footnote 73 In a case decided in October 2022, Flores Bedregal v. Bolivia, the Court, when reaffirming the different nature of the search and that of the criminal investigation recalled that the Guiding Principles established that the criminal investigation or the conviction or acquittal of those accused of having committed an enforced disappearance should not constitute an obstacle to the continuation of search activities or be invoked to justify their suspension.Footnote 74
3.6.3 African Union
In the course of its 73rd session (21 October–9 November 2022) in Banjul, Gambia, the African Commission on Human and Peoples’ Rights adopted its Guidelines on the Protection of All Persons from Enforced Disappearances in Africa.Footnote 75 This is the first systematic elaboration on the issue of forced disappearances within the African System of Human Rights Protection. The ninety-page document draws extensively on the international normative advances on Forced Disappearance. Chapter 4.1.4 on the ‘Obligation to search and investigate’ is largely based on the Guiding Principles adopted by the CED, referring to several of them in detail.
3.7 Impact of the Guiding Principles in Civil Society
As mentioned before, the basic impulse for the CED to redact the Guiding Principles has come from the permanent complaint of victims’ initiatives, human rights organizations and civil society in general that the search for the disappeared persons is mostly neglected by the responsible States. The Committee, while reaffirming that there is a clear States obligation already in the text of the Convention (see above) found it nevertheless necessary to issue a special document on the obligation of and good practices for the search of disappeared persons. This process resulted in the Guiding Principles, which was advanced in permanent exchange with civil society organizations. So, it is natural that these were the first to adopt the Principles as a new tool in their struggle to find the disappeared. The cases of Mexico and Colombia have already been highlighted. But first in Latin America and soon beyond that region, civil society began to use the Principles wherever there were disappeared persons to find. In the following paragraphs, we present just a few examples, highlighting the ones from countries that are not State parties to the Convention. We will present first the impact in civil society in Latin American countries, then in Asian and in European countries.
3.7.1 Honduras
In Honduras, one of the few Central American States that have ratified the Convention, civil society organizations have taken great interest in the Principles. One example is the Honduran Black Fraternal Organization (Organización Fraternal Negra Hondureña) (OFRANEH), that cares, among other issues, about the fate of disappeared members of the Garífuna communities in the Caribbean coast of the country. In its statement on behalf of the International Day of the Victims of Forced Disappearances in 2021, they sustained their claims on an extensive and detailed use of the Guiding Principles.Footnote 76
7.2 Peru
An example of the wide dissemination of the Guiding Principles among civil society organizations is its mention in a text about memory and non-repetition, published in Quechua, by the National Association of Relatives of the Kidnapped, Detained and Disappeared in Peru (ANFASEP) together with the Catholic University of Peru (PUCP).Footnote 77
3.7.3 Cambodia
In April 2022, fifty civil society organizations from Cambodia issued a joint statement denouncing forced disappearance in Cambodia, particularly the cross-border disappearance of Thai human rights activist Wanchalearm Satsaksit. Specifically, they declared that ‘unconscionable delays in the search for a disappeared person are inconsistent with the Guiding Principles for the search for disappeared persons, including to presume the person is alive, respect human dignity, start the search without delay, use information in an appropriate manner, and respect that the search is a continuing obligation until the fate of the disappeared is known’.Footnote 78
3.7.4 Syria
In March 2021, ethnic minority groupsFootnote 79 from northern and eastern Syria founded a Coalition named ‘Synergy’ to represent all the victims of the wars in the region. A special focus of Synergy is directed towards the victims of forced disappearance. With a view towards existing and hopefully forthcoming international commissions for the search of these disappeared persons, Synergy developed a set of guidelines for the participation of victims in the international mechanism for the disappeared in Syria,Footnote 80 with the aim ‘to consolidate the right to the participation of victims and their families in the search for their disappeared and loved ones in Syria’. As the drafters manifest, the guidelines ‘are based on articles 24 and 18 of the International Convention for the Protection of All Persons from Enforced Disappearance and the Guiding Principle no. 5 of Guiding Principles for the search for the disappeared persons developed by the Committee on Enforced Disappearance’. Indeed, this document can be considered an interesting, carefully drafted, adaptation of the principle of victims’ participation in the search to the specific context and conditions of this region in Syria, a State that has not signed the ICPPED nor shows any concern about the protection from forced disappearance.
3.7.5 Poland
Although the Guiding Principles are based on the Convention, developing the duty to search contained in this treaty, they are an autonomous UN document at the service of any person, group or institution, including States that are not a party to the treaty. An interesting example on how the Principles thus can have an impact beyond the boundaries of the Treaty obligations is a document produced by the Polish Police Academy dealing with the ‘Development of a database and tools for semantic search for information and knowledge management in the area of missing persons and search for persons’. The authors of the study emphasize that the proposed information system has been designed in line with the Guiding Principles, which they describe in detail adding that ‘all these requirements, and others contained in the document, were taken into account when developing the system’.Footnote 81
3.8 Academic Discussion of the Guiding Principles
Since some of the academics that for years have been involved in the topic of forced disappearances had also taken part in the drafting process, it is not surprising that they also published on the document once it had been adopted by the CED.Footnote 82
Several academic publications refer to the Guiding Principles in contexts that go beyond their immediate scope related to the search. For example, Bernard Duhaime, Juan E. Méndez and Pau Perez-Sales point to the Guiding Principle on the Respect for human dignity in the context of the relation between forced disappearance and torture.Footnote 83 Issa Cristina Hernández Herrera, when advocating for the need to interact in the search even with groups of organized crime in view of a ‘humanitarian alternative’ for the families victims of such groups, and decrying the ‘false and unfair choice between justice and truth’ that especially victims of these groups are confronted with, sees an avenue for victims in ‘a complementarity logic’ between investigation and search as demanded by Principle 13 of the Guiding Principles.Footnote 84 Britta Nicolmann points to the fact that the CED itself, once the Principles had been adopted, makes systematic use of them in its Urgent Action recommendations.Footnote 85 Lena Guercke finds in Principle 10, which deals with the efficient organization of the search an argument, ‘that the CED considers “disappeared persons” as encompassing both victims of forced disappearances and victims of disappearances committed by non-State actors and considers the obligation to search to apply to all victims’.Footnote 86
One aspect in which the Guiding Principles have found particular resonance is the disappearance of persons during flight or migration. In her studies on disappearances in the context of migration,Footnote 87 Grażyna Baranowska draws systematically on the Principles for interpreting the norms of the Convention. Melanie Klinkner and Howard Davis, authors of a book on ‘The Right to the Truth in International Law’,Footnote 88 draw on article 9 of the Guiding Principles in a related essay published after the adoption of the Principles, in order to substantiate the duty to cooperate in effective investigations, understanding that Principle 9 ‘glosses the cooperation requirement in article 15’ of the Convention.Footnote 89
Special attention to the Principles comes from Chilean law professor Pietro Sferrazza who only weeks after the publication of the Principles discussed them in a first article dealing with problems of the search for the persons disappeared during the Pinochet dictatorship that are still not found.Footnote 90 Sferrazza stressed the importance of this ‘soft law text’ for the Chilean case, particularly with regard to the search as a continuing obligation (Principle 7) which he discusses in extenso. In another, larger essay published the same year, the Chilean expert sets out the existence of an autonomous fundamental right of disappeared persons to be searched for, along with a corresponding international obligation for all States.Footnote 91 He highlights the Guiding Principles as a ‘landmark in the evolution of the interdisciplinary reflection about forced disappearance’ and considers it an ‘obligation for any State that seriously seeks to implement a public policy of search’. The CED, concludes Sferrazza, with the Principles has begun ‘to promote a complementary model of search’. In this line, the author sustains throughout the text his argument quoting the different Principles. To these two important essays, Sferrazza added another in which he sets out directly to comment on the Principles article by article.Footnote 92 He starts his analysis with a focus on one of the main concerns of the Principles, the difference and necessary complementarity of the two principal ways in which the search is normally conducted: through judicial and administrative (or ‘humanitarian’) procedures. In the main part of the essay, titled ‘Critical analysis of the Guiding Principles for the Search for Disappeared Persons’, the author comments on all the Principles, drawing often on related sources. He discusses first the principles that set the general frame, like the permanent character of the obligation to search, the presumption of life and the respect for dignity and the need for a comprehensive public policy. He notes that the Principles do not expressly call for an autonomous public institution for the search but leave it open to States whether they take this option or find a way that the competent judicial organs deal adequately also with the search, whereas in his opinion the need for a special administrative organ for the search is clear. In his discussion of the more technical recommendations contained in the Principles, Sferrazza comments that those related to forensic procedures are rather general and suggests some precisions like, for example, related to the preservation and documentation of unidentified remains. Without prejudice of these and some other features where Sferrazza sees a need for more extensive development of their content, the author summarizes his analysis stating that the Principles are a ‘great advancement of the universal system of protection of human rights with regard to the humanitarian needs of the victims’.
In Colombia, already in 2020, a master’s thesis sought to analyze the relevance of the Guiding Principles with regard to the work of the official institution charged with the search of the disappeared persons (Unidad de Búsqueda de Personas Dadaspor Desaparecidas – UBPD).Footnote 93 In her thesis, the author gives a detailed overview of the Principles and shows that they reflect largely the principles formulated in the legal norms that implement the Peace Accord of 2016. As a consequence, the author presents a series of specific proposals for direct application of the Principles in the work of the UBPD and their relations with other authorities created in the framework of the Peace Accord.
A comparative study between Colombia and El Salvador with respect to the rights of families to participate in the search considers the Guiding Principles as ‘the most promising instrument’ in the international context and proceeds to a detailed scrutiny of their applicability in existing norms and the needs to enlarge and precise them.Footnote 94
An even more expansive study on non-judicial search mechanisms in Latin America and Asia also discusses in much detail the Principles adopted by the CED.Footnote 95
The number of academic texts referring more or less extensively to the Guiding Principles is growing fast and it is impossible to try to give an exhaustive list here. It should be of interest, though, that not only legal and social scholars pay attention to the Principles but also forensic scientists.Footnote 96 The latest specific protocol on forensic procedures, the 2020 Bournemouth Protocol on Mass Grave Protection and Investigation,Footnote 97 explicitly ranks the CED Guiding Principles among the ‘International norms’ in the field, referring repeatedly to them throughout the text. Another academic document proposing standards, in this case on the registry and documentation of forced disappearances, refers also to the Principles, particularly Principle 11.Footnote 98
In Serbia, a State Party to the Convention, the Provincial Protector of Citizens – Ombudsman of the Autonomous Province of Vојvоdinа publishes a voluminous Yearbook. Its 2021 edition, dedicated to the Right to Life, offers an article by Milica Kolaković-Bojović on ‘Disappeared Persons and the Right to be Considered Alive – The Current State of Play in the Western Balkans’ in which the author, a member of CED, recurs to the Principles, among the International standards which proclaim the right to be searched for under the presumption of life, supporting this right. The author also informs that in 2021 the Serbian Government has established a working group to develop a draft Law on Missing Persons for which it used the Guiding Principles in detail.Footnote 99 The line between academic research, reports and similar documents by international human organizations is a fluid one. To give just a few examples, we mention the recent report of REDRESS on forced disappearance in Africa,Footnote 100 which makes extensive use of the Principles, and the interest of the International Commission of Jurists (ICJ) in understanding and disseminating the Principles.Footnote 101
In Pakistan, which is not a Party to the Convention, the Guiding Principles were mentioned in an article published in 2021 entitled ‘Dysfunctional Law against the Crime of Enforced Disappearances in Pakistan’. When referring to the continuous nature of the obligation to investigate a crime of forced disappearance, the authors recalled the continuous nature of this crime, enshrined in the Convention and in Principle 7 of the Guiding Principles.Footnote 102
3.9 Conclusions
The Guiding Principles for the Search for Disappeared Persons have been the result of persistent claims from family organizations and civil society for a clear, detailed and legitimate interpretation of the right to be searched for and the right to search, according to international human rights law and stated in the ICPPED. The Principles were drafted with active and broad participation of many victims, in a process that let them feel that this instrument was theirs. It is no surprise then that those victims, their collective organizations and other human rights organizations from civil society make ample use of the Principles to sustain their continuing claims for a more efficient, respectful and participative search of the beloved family members or other persons close to them that continue disappeared.
The Principles were drafted, however, also with a view to giving better orientation and a more explicit interpretation of their obligations in the search process to those States that are willing to improve their practice that had and has been often criticized by the Committee in its recommendations on urgent actions and its concluding observations. It is encouraging to see that several States have quickly taken up this opportunity and integrated, in a constructive way, the Principles in the design of their public policies related to the search, in their legislation and, in one case, even made the Principles a constitutional norm for the search. Similarly, courts, including Supreme Courts, have adopted the Principles as a norm to measure the performance of the competent authorities in the search. The same is true for the most advanced jurisdiction for forced disappearance on the international level, The Inter-American Court of Human Rights, which has already integrated the Principles in its case law on forced disappearances. It is also notable to see that both the Committee on Enforced Disappearances and the Working Group on Enforced or Involuntary Disappearances continue to apply the Guiding Principles in their work.
The present chapter was concluded at the end of 2022, three years after the adoption and publication of the Guiding Principles. The balance of these first three years of the existence of the Principles is encouraging in many ways. While it is evident that the Principles have received most attention in the Latin American region, as it was there where the strongest impulse for their redaction came from, the Principles are making their way into other regions, too, and are clearly on the way to be universally recognized and integrated in the struggle for the search of disappeared persons. The examples presented here from civil society in Poland, Serbia, Cambodia, Syria and particularly the inclusion of the Principles in the recent Guidelines on the Protection of All Persons from Enforced Disappearances of the African Union show that the Principles can be adapted to situations everywhere where people are forcibly disappeared and where there is a will to do everything possible to clarify these disappearances and locate the missing persons.
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