Caring for the Missing: Forensic, Humanitarian and Judicial Responses to Disappearance and Enforced Disappearance

Abstract

Enforced disappearance in Latin America is simultaneously an ongoing reality; an emblematic crime of past authoritarian regimes, and a significant component of the human toll of internal armed conflict in some Central American and Andean countries. Recent accountability developments in Latin America and beyond have called on forensic science to trace, unearth and restore the remains of the disappeared: as part of a judicial process, or as a humanitarian imperative in its own right. Some consider that a distinctive Latin American approach to forensic work as human rights work has emerged, with experts from the region increasingly called upon to assist international tribunals or perform exhumations of mass graves. Technical-scientific forensic interventions are however only part of the story. Efforts to bring perpetrators to justice require exploration of the intersection between international legal norms, regional human rights systems, and domestic criminal justice. While Latin America was a pioneer in originating a regional Convention against Enforced Disappearance, and the Inter-American Human Rights system has been active around the issue since the 1970s, the tensions inherent in retrospective application of those principles to historic crimes have been addressed in varied ways around the region. Activists, relatives’ associations, and cause lawyers have been key actors in navigating domestic impunity, reinterpreting domestic amnesty legislation, and attempting to establish individual accountability for collective, institutional criminality. Meanwhile, democratization and legal reforms have produced state structures at least theoretically more open to complying with ex officio duties in truth, justice, reparations and guarantees of non-repetition. Prosecutions of past perpetrators, both military and civilian, have however provoked social and political controversy. The entire enterprise of seeking remains is meanwhile inimical to historical demands for ‘aparicion con vida’. Some relatives’ associations, and associated political groups, accordingly refuse to recognize the search for remains or certification of death, whether by state or non-state actors. The existence in some countries of a generation of appropriated children, stolen from their forcibly disappeared parents and brought up under false identities, has added weight to these refusals and produced specific scientific innovation in the use of DNA mapping to trace even indirect biological relationships. Cultural, ethnic and religious cleavages that were often at the heart of conflict dynamics of conflict moreover complicate processes of truthtelling, reparation, and even physical identification. Attempts to trace and identify the disappeared therefore give rise to conflicts between ‘civic trust’ and scientific certainty, compounded by a legacy of mistrust between citizens and previously collusive or directly repressive states. This working paper collates and synthesises the results of three events stimulating dialogue between law, social science and forensic (natural) sciences around the issue of disappearance and enforced disappearance in contexts of past political violence. This dialogue, focused principally on Latin American experiences, took the form of two workshops and a set of academic panels carried out in January and April 2017, in Santiago de Chile and Lima, Peru. The events were designed, timed and targeted to contribute to ongoing policy processes in Chile and Peru, as both countries are in the process of designing national mechanisms or search plans in accordance with the terms of the 2006 International Convention against Enforced Disappearance. They also sought to inform ongoing academic and policy debates in and about El Salvador and Sri Lanka, to provide a platform for interaction with relatives’ associations - whose participation is key for successful national design processes - and to highlight the potential resource represented by key international and regional actors such as the International Committee of the Red Cross (ICRC), the Latin American Forensic Anthropology Association (ALAF), and the Inter-American Commission on Human Rights (CIDH). The events, and subsequent academic and policy publications, were supported by the Latin American Studies Association (LASA) through the LASA-Ford Special Grant ‘Caring for the Missing: Respuestas Humanitarias, Juridicas a la Desaparicion de Personas’, 2017; and in part through the Ulster University Research Challenge Fund project ‘Enforced and Involuntary Disappearance – Scoping Study’ (2017).