Victims’ Perspective on the Development of Enforced Disappearances by Non-State Actors

In May 2023, the Committee on Enforced Disappearances addressed the issue of non-state actors in the International Convention for the Protection of All Persons from Enforced Disappearances (ICPPED). They aimed to clarify the Convention’s normative gaps regarding the State’s role when non-state actors commit enforced disappearances. The Committee broadened the interpretation of key concepts, providing examples of cases where the State can be held accountable for acquiescence. If the State knew about the crime and allowed it to occur, they could be directly responsible.

While the statement expanded State responsibility and addressed normative gaps, this article contends it falls short of adequately protecting and providing reparations for victims. In situations like Mexico, where state involvement in these crimes is obscured, victims still face the burden of proving the State’s complicity, leaving them vulnerable and without adequate support. This article will specifically examine these challenges within the Mexican context.

The Committee Statement and the ICPPED

The ICPPED defines enforced disappearance in Article 2 as the “arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or group of persons acting with the authorization, support, or acquiescence of the State […].” Before the Committee’s 2023 Statement, the ICPPED did not provide further guidance on the definitions of “authorization, support, or acquiescence”, leaving an unclear threshold for direct attribution to the State.

According to the Committee’s recent statement, “acquiescence” denotes the direct attribution of the State when there is a known pattern of disappearances, and when the State has failed to take the necessary measures to prevent further cases. Additionally, the Committee highlighted that these circumstances may involve certain armed groups, including paramilitary groups, civil patrols, and individuals involved in organized crime. This last category is particularly relevant to the Mexican context, given the escalation of violence in recent years associated with drug cartels and the increased commission of enforced disappearances in the territory.

However, two crucial questions persist. First, there is uncertainty about who bears the burden of proof to demonstrate the existence of a known pattern of disappearances. Although the Committee established that the State has the burden of proving that there was no acquiescence on its part, its statement also proposes that in cases of acquiescence, there first must be an existent and known pattern of disappearances. As such, it is not clear who has the burden to prove the existence of such a pattern. Second, it remains unclear to what extent the victims can benefit from this interpretation, especially considering the current implementation of national and international frameworks. In both instruments, there is still a distinction between enforced disappearances by non-state actors and those by private individuals.

Critique of Current International and National Framework on Enforced Disappearances by Non-State Actors

As we can see in the previous ICPPED’s definition, State authorities are considered the main perpetrators of enforced disappearance. Based on the historical narratives regarding Nazism and the subsequent military regimes in Latin America, this definition is related to the traditional aspect of enforced disappearances. From this traditional perspective, this crime was a common state practice against political and social opponents of the government. One example of this traditional form that can adequately fit the ICPPED’s definition is the case of Operation Condor in Latin America. Operation Condor was a transnational collaboration between the Latin American authoritative regimes throughout the 1960s to 1980s, which targeted exiled political opponents through illegal detentions, tortures, and enforced disappearances.

During the drafting process of the ICPPED, there were some discussions about including non-state actors in the definition of enforced disappearances. Still, the ultimate decision was to establish a direct and indirect involvement of the State. Article 3 includes the duty of due diligence by obliging the state Parties to investigate acts of disappearances committed by non-state actors acting without the “authorization, support or acquiescence” of state agents. Although State Parties may be responsible if they fail to investigate and prosecute disappearance cases as per Article 3, victims falling under this assumption may experience restricted access to remedies and ineffective accountability mechanisms.

Compared to enforced disappearances, cases falling under Article 3 are often treated differently by state Parties, categorized as kidnappings or abductions. Consequently, victims have limited access to mechanisms ensuring remedies and justice. For example, the international institution handling urgent enforced disappearance cases, the Working Group on Enforced or Involuntary Disappearances, historically did not accept cases involving non-state actors. Initially, the Working Group’s stance excluded crimes without direct state involvement to preserve the framework of state responsibility. However, the Working Group expanded its mandate to include non-state actors due to numerous reports from various countries. However, access to the Working Group remains highly restricted, as victims bear the burden of proof, demonstrating that the non-state actor exercising control over the territory is responsible for the crime.

The Impediments for Victims of Enforced Disappearances in Mexico to International Institutions

Beyond the restricted access to international institutions, these victims can underpin significant limitations in countries like Mexico, where non-state actors commit the majority of the disappearances. Aligning with the definitions in the ICPPED, the Mexican General Law on Enforced Disappearances (the Law) set out the classification of disappearances, distinguishing those committed by state actors and those perpetrated by private individuals.  Following the provisions of the Law, victims of enforced disappearances are entitled to civil reparations from 10,000 to 20,000 minimum days of wage payments. Conversely, victims of disappearances carried out by private individuals may receive compensation between 500 to 800 days of minimum wage. Regarding the perpetrators, individuals responsible for committing an enforced disappearance may face prison sentences of 40 to 60 years, while those involved in disappearances by private persons could be sentenced to 10 to 20 years. As we can see, there is a notable disparity in reparations and sanctions between the two crimes. Victims of non-state perpetrators receive substantially less in terms of remedies compared to victims of enforced disappearances.

In general terms, enforced disappearances committed by state agents should be considered an aggravating circumstance due to the heinous nature of the crime. When a state agent is responsible for enforced disappearance, the victim’s family should arguably have the right to pursue diverse avenues, both domestically and internationally, to locate the victim and bring the perpetrator to justice. However, when it comes to non-state actors, while states have a theoretical obligation to exercise due diligence in investigating and prosecuting disappearances, the practical distinction between state and private individuals as perpetrators can sometimes become blurred, for example, in Mexico, where there is a continuity increase levels of impunity, corruption practices, and the spreading of violence by drug cartels have complicated the identification and the level of involvement of state agents in the commission of disappearances.

The extent of State agents’ involvement in disappearances varies in cases. In Mexico, the involvement can range from direct state actions like the Ayotzinapa case to indirect state responsibility, such as negligence within the judiciary and the manipulation of official figures. For instance, the current Mexican President, López Obrador, disregarded the official numbers of the disappeared as being exaggerated and tempered. López Obrador then mentioned that the “real number” of disappearances is around 12,000 people, when the official number mentions that there are over 113,000 victims of enforced disappearance. Lastly, we can see the involvement of corrupt practices in the permissibility and tolerance of delinquent groups. For instance, the former security chief, Genaro García Luna, was found guilty in a U.S. court for taking bribes from the Sinaloa Cartel. Therefore, we could argue that the Mexican state is, at least by acquiescence, to some degree involved in all cases of disappearance.

In countries like Mexico, despite significant contributions made by the international community to address normative gaps and broaden state participation in cases of enforced disappearances by non-state actors, the burden of proof that rests on the victims to establish state involvement remains highly complex. If the victim is carrying that burden, it can be challenging to depict a widespread pattern in countries where even the President disregards and manipulates official numbers of disappearances. Furthermore, differentiating between disappearances in national contexts where there is no clear line between who is the actor that is committing these crimes can also significantly affect the victim’s access to justice, reparation, and accountability mechanisms.

Moving Towards a More Just and Accountable Framework, How Can International Law Ensure That Victims of Enforced Disappearances Receive the Justice They Deserve?

The complex dynamics and ambiguities that surround the victims of enforced disappearances in Mexico requires a narrower and stronger definition of the crime. As part of the current developments in the definition and interpretation of enforced disappearances by non-state actors, it can be efficient to establish a legal presumption of state involvement in all current Mexican cases of disappearances, as in cases of human rights violations that are committed when the individual is at the disposal of the State, where acts of torture may be committed during police custody. In this regard, it would facilitate and enhance a more equitable reparation for the victims and the possibility to pursue other international legal means and remedies. Furthermore, it would benefit the victim since the burden of proof will rely on the state side, and it might justify precautionary measures to provide to the victim throughout judicial and international processes.