Chapter 1 - Introduction to the Rights and Needs of Families of Disappeared Persons

Summary

The Spanish term ‘desapariciones forzadas’ was adopted to describe the serious violations of human rights which took place in the 1960s and 1970s in various South American countries. However, enforced disappearances occurred much earlier, and the first person convicted for them was Wilhelm Keitel, who was sentenced in the Nuremburg trials for, inter alia, implementing Adolf Hitler's Nacht und Nebel decree of 9 December 1941. This decree established that persons engaged in resistance activities in Western European territories, for whom the issuance of the death penalty by a court was uncertain, were to be secretly transported to the Third Reich. A cover letter attached to the decree explained its purpose by stating that efficient and enduring intimidation of a population can only be achieved by capital punishment or by concealing the fate of a person. This shows that enforced disappearances were chosen as a means of violence precisely because they affect not only the disappeared person. The perpetrators are aware that such a disappearance has a devastating effect on the family members of the disappeared, who are purposely kept in ignorance of the fate of their loved ones and suffer the anguish of uncertainty. Families of disappeared persons endure unique forms of suffering as a direct result of the disappearance, which has been described as ambiguous loss. The particular way families of disappeared persons are affected in comparison to other human rights violations has been recognised by various human rights mechanisms.

The main aim of this work is to analyse how international judicial and non-judicial bodies in Europe address the needs of the families of disappeared persons. In the vast majority of cases examined, the disappearances took place many years before the case was brought to international bodies by families of the disappeared persons, which is reflected in the needs. The identified needs are (1) returning the remains of the disappeared persons; (2) the right to the truth; (3) the acceptance of responsibility by states; and (4) the right to compensation. This work explores whether, how, and based on what principles these four needs can take the form of a claim based on international human rights law. The needs will be explained in section 2 of this Introduction.