Book review: Grażyna Baranowska. Rights of Families of Disappeared Persons: How International Bodies Address the Needs of Families of Disappeared Persons in Europe:. Cambridge: Intersentia, 2021. Pp. 218.
This is a highly legal and technical book by a university professor and as such it is tempting to understand this volume solely as an academic – in every sense of the work – contribution to human rights literature. However, when its author, Grażyna Baranowska, is not only a Professor of Law and Human Rights, but also an independent expert with the UN Working Group on Enforced and Involuntary Disappearances (WGEID), one can understand how such a technical exercise can lead directly to real world impact.
When reading a legal text like this it seems appropriate to understand that beyond the technicalities always lie real people – the families of the disappeared – whose lives can be improved by the application of law. The book notes that while, in Western Europe, enforced disappearance is largely seen as a phenomenon of the 20th century, it continues in the context of armed conflict, notably in Ukraine, to the present day. More than this, a majority of those historical cases of disappearance in Europe remain unresolved and, according to human rights law, the violation of disappearance continues until there is a judicial determination of the person’s fate.
Baranowska makes a comprehensive survey of the jurisprudence relevant to the European context, primarily that of the European Court of Human Rights (ECtHR), but including international judicial bodies established in response to wars in the former Yugoslavia. She also summarizes relevant elements of the UN Human Rights Committee’s (HRC) approaches to enforced disappearance and non-judicial mechanisms, notably the Committee on Enforced Disappearances (CED) and the WGEID. The book seeks to explore the principles on which the rights and needs of the families of the disappeared can be addressed through claims based on international human rights law.
The story the book tells, to the extent that one can impose a narrative on such a volume, is one of legal innovation in Latin America – based on the activism of the families of the disappeared themselves – being disseminated globally. The UN General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance in 1992, and some fourteen years later the International Convention on the Protection of All Persons from Enforced Disappearance (ICPPED), which remains the cornerstone of the global proscription of disappearance. The ICPPED differs from most relevant legal instruments in that it seeks to prevent disappearances, while others largely condition reactions to disappearance, for example in terms of the rights of families of the disappeared. Among mechanisms, only the WGEID and CED have mandates to undertake preventive actions, such as country visits and the offering of advice. Baranowska lists the needs of families that are acknowledged in law (rights to financial compensation, to truth, to return of the remains of the dead, and acceptance by states of their responsibility for disappearances). This reveals both how much progress has been made in tailoring legal instruments to address the needs of families, but also makes clear the remaining gaps where many needs of families remain unrecognised.
Disappearance is understood to require the engagement of a state in the crime, although the Rome Statute uniquely expands this definition to include members of a ‘political organisation’. Given that these instruments seek primarily to protect persons, this strict definition may appear to limit such protection. In light of this, European jurisprudence has engaged with this constraint to the extent that the Human Rights Chamber for Bosnia and Herzegovina (HRCBiH) and the Human Rights Advisory Panel (HRAP) in Kosovo, both labelled cases in which a state was not involved as ‘enforced disappearances’. The Human Rights Committee has also done so. This demonstrates that there is scope for some dynamism and flexibility in the law and a more recent innovation has seen the WGEID use the term ‘violations tantamount to enforced disappearance’ for violations perpetrated by non-state actors. This demonstrates the mainstreaming of disappearance to the extent that it is understood as a violation, whoever is responsible, which is a significant extension of the original conception. It also reveals the relevance of law seeking to move beyond a rigid commitment to state responsibility, in an environment where most conflicts, and many violations of human rights, involve non-state armed groups
One of the most important developments of the ECtHR holds that family members of the disappeared can be victims of an Article 3 violation, which prohibits torture, and “inhuman or degrading treatment or punishment“. This was one of the strongest judicial confirmations of the widespread understanding that the suffering of the families of the disappeared is extreme, confirming that it in some circumstances equates to torture. Baranowksa makes the point, however, that the Court has not been explicit as to which elements of state behaviour define such inhuman and degrading treatment.
The right to truth is often used as a rhetorical basis for claims-making around disappearances. However, the ECtHR has recognised this right only in very particular circumstances, such as that of extraordinary rendition. However, both the HRCBiH and HRAP – confronted with widespread disappearances during wars in the Balkans – developed jurisprudence that diverges from that of the ECtHR. Both recognise the right to truth, but this has not led to any prosecutions that reference this. The HRCBiH and HRAP have also both engaged with the issue of the return of human remains of the disappeared who are dead, echoing judgements of the Inter-American Court for Human Rights, and – somewhat later – both the HRC and ECtHR also recognised this as a need and right of families. Baranowsksa notes that institutions such as the HRCBiH and HRAP, with remits limited to a particular conflict, are better able to consider the specific cultural and religious background of victims and the particular needs of families of the disappeared than international Courts, such as the ECtHR.
Baranowska analyses the ecosystem of international mechanisms available to families of the disappeared, including the CED, WGEID, the Committee on Missing Persons in Cyprus and the International Commission for Missing Persons. She notes that universal bodies, such as the CED and WGEID, can pressure state authorities to meet their obligations, but that – while there is an increasing number of such mechanisms available – their response to addressing families’ needs has been uneven. This is perhaps a nod to the fact that there remains a gap between the needs of families, the rights to which law entitles them, and the capacity of law to deliver on both.
There is a broader critique to be made of the limits of law as an effective response to enforced disappearance. This has been summarised in a number of critical reflections on transitional justice processes, which often frame efforts to address legacies of disappearance. Such critiques are often posited as a critique of ‘legalism’ (e.g. McEvoy 2017), that sees legal analysis both separate from and prioritised over social and political perspectives. If addressing enforced disappearances should address the needs of families, this demands engaging not only with law but with the everyday lives of families, and understanding the impacts of disappearance on them. A large body of empirical work now addresses the breadth of families’ needs across multiple contexts, and the challenges involved. At the heart of these challenges is the institutionalisation of impunity when perpetrators remain in or close to power and, even where relevant legal frameworks are in place, there is no political space to act to address disappearances. In such environments, law becomes at best a tool of advocacy and at worst sets expectations that will never be met.
But beyond such limitations, there is a critique that international human rights law will necessarily fail to comprehend and engage with the highly contextually dependent needs that emerge when disappearances occur. There remains a tension in human rights practice between a discourse that purports to allow victims to claim their rights and a body of law, as described in detail in this volume, and the way those rights are instantiated in language and concepts that are largely inaccessible to those victims. This book represents an impressive resource to support those working in contexts where law can help victims of disappearance claim rights and address needs, but is in itself a demonstration of how inaccessible the law can be to those, like the families of the disappeared, who are most in need of it.
SIMON ROBINS
University of York
McEvoy, K. (2017). Beyond legalism: Towards a thicker understanding of transitional justice. In The Criminology of War (pp. 515-544). Routledge.