Truth and Law

Refereed Journal of Juridical and Social Sciences

Vol. 3(3), 18-28, 2024

https://doi.org/10.62574/xddwhr29

Enforced disappearance and its impact on victims' human dignity

La desaparición forzada y su repercusión en la dignidad humana de las

víctimas

Jorge Eduardo Samaniego-Braganza

dr.jorgeesb57@uniandes.edu.ec

Universidad Regional Autónoma de los Andes, Riobamba, Chimborazo, Ecuador

https://orcid.org/0000-0002-9645-268X

Valeria Estefanía Vicuña-Pozo

ur.valeriavp84@uniandes.edu.ec

Universidad Regional Autónoma de los Andes, Riobamba, Chimborazo, Ecuador

https://orcid.org/0000-0002-1883-8384

ABSTRACT

The aim of this paper is to analyse enforced disappearance and its impact on the human dignity of

the victims. Thirteen academic articles were selected from journals specialising in law, human rights,

social sciences and psychosocial studies. Enforced disappearance remains a complex challenge that

profoundly impacts the foundations of the rule of law and the protection of human rights. This crime,

which transcends the physical affectation of the victims to generate devastating psychosocial

consequences in their families and communities, demands a forceful and efficient legal response from

states. The lack of homogeneous criminalisation, insufficient training of security forces, and gaps in

justice and reparation mechanisms aggravate impunity, perpetuating the violation of fundamental

rights.

Descriptors: terrorism; human trafficking; crime. (Source: UNESCO Thesaurus).

RESUMEN

Se presenta como objetivo analizar la desaparición forzada y su repercusión en la dignidad humana

de las víctimas. Se seleccionaron 13 artículos académicos de revistas especializadas en derecho,

derechos humanos, ciencias sociales y estudios psicosociales. La desaparición forzada continúa

siendo un desafío complejo que impacta profundamente los cimientos del Estado de derecho y la

protección de los derechos humanos. Este crimen, que trasciende la afectación física de las víctimas

para generar devastadoras consecuencias psicosociales en sus familias y comunidades, exige una

respuesta jurídica contundente y eficiente por parte de los Estados. La falta de tipificación

homogénea, la insuficiente formación de las fuerzas de seguridad, y los vacíos en los mecanismos

de justicia y reparación agravan la impunidad, perpetuando la vulneración de derechos

fundamentales.

Descriptores: terrorismo; tráfico humano; crimen. (Fuente: Tesauro UNESCO).

Received: 04/07/2024. Revised: 12/07/2024. Approved: 17/07/2024. Published: 01/09/2024.

Research articles section

Truth and Law

Refereed Journal of Juridical and Social Sciences

Vol. 3(3), 18-28, 2024

https://doi.org/10.62574/xddwhr29

INTRODUCTION

The forced disappearance of persons is one of the most heinous crimes against

human dignity, not only because of the serious violations of fundamental rights it

entails, but also because of the profound social, emotional and legal repercussions

it generates. This crime, which has been classified as a crime against humanity in

international law, persists as a disturbing practice in many parts of the world,

especially in Latin America, where dictatorships, internal conflicts and institutional

violence have favored its proliferation. Enforced disappearance not only affects the

direct victims, who are uprooted from their environment without a trace, but also

subjects their families to a state of perpetual uncertainty, depriving them of the

possibility of emotional and legal closure.

In legal terms, enforced disappearance presents unique challenges that test justice

systems in multiple dimensions. From its criminalization in national penal codes to

the implementation of adequate mechanisms for its prevention, investigation and

punishment, States face the arduous task of complying with their international

human rights obligations. As Basaure-Miranda (2018) points out, the criminalization

of the offense in Latin America has been uneven and, in many cases, insufficient to

address the magnitude of the problem. Despite the fact that enforced disappearance

is recognized in international law, cooperation among Latin American countries to

address this phenomenon has been limited, resulting in high rates of impunity and

lack of access to justice.

In this context, the role of the security forces is crucial in both the prevention and

investigation of this crime. However, as Arana-Borja & Cruz-Piza (2023) argue,

deficiencies in police training and the lack of specialized protocols hinder the

effectiveness of the institutions in charge of combating this crime. In Latin America,

police action against enforced disappearances is hampered by a series of structural

problems, ranging from corruption to lack of resources and trained personnel, which

aggravates the vulnerability of victims and perpetuates the cycle of impunity.

From a psychosocial perspective, the impacts of enforced disappearance are

devastating. Studies such as those by Camacho-Quirós (2024) and Romero-Sáenz

Truth and Law

Refereed Journal of Juridical and Social Sciences

Vol. 3(3), 18-28, 2024

https://doi.org/10.62574/xddwhr29

& Cuellar-Cuellar (2022) have shown how this crime generates profound suffering

in the families of the victims, who are trapped in an emotional limbo, not knowing

whether their loved ones are alive or dead. Prolonged uncertainty, lack of

information and the absence of a proper judicial resolution generate severe

psychological effects, including post-traumatic stress, depression and anxiety

disorders. In addition, in many cases, families are forced to assume activist and

human rights defense roles, fighting against the negligence or even complicity of

state authorities in a context of generalized impunity.

A central aspect in the analysis of forced disappearance is the relationship between

this crime and human dignity. According to Durán-Mantilla et al. (2021), enforced

disappearance not only represents a direct violation of the rights of the disappeared

person, but also undermines the fundamental principles of justice and equity that

should govern a state under the rule of law. The lack of access to the truth and the

absence of effective reparation mechanisms constitute an additional violation,

preventing victims and their families from closing the cycle of pain and finding a

form of justice. In this sense, Latin American judicial systems have shown a profound

inability to provide satisfactory responses, unlike other international jurisdictions,

such as Europe, where courts have advanced in the judicialization of these cases, as

highlighted by León and Villa (2019).

Another recurrent problem in the region is the confusion between enforced

disappearance and presumed death, which affects both victims and their relatives.

Friend-Macías & Naveda-Vera (2018) point out that, in many Latin American legal

systems, the lack of clear differentiation between these concepts leads to double

victimization: families not only face the disappearance of their loved one, but also

see how the judicial system declares them dead without a thorough investigation or

search for the truth. This directly affects the right of victims to be recognized and

complicates reparation processes, as families cannot effectively access justice.

The gender dimension is another fundamental aspect in the discussion on enforced

disappearance, especially with regard to women, who are particularly affected by

this crime, both as direct victims and as family members. According to Tamayo-

Arango & Arenas-López (2021), women who have lost their sons, husbands or

Truth and Law

Refereed Journal of Juridical and Social Sciences

Vol. 3(3), 18-28, 2024

https://doi.org/10.62574/xddwhr29

fathers in contexts of enforced disappearance are forced to reconstruct their identity

and role in society, often assuming the struggle for truth and justice in an

environment of violence, discrimination and exclusion. These new maternities and

social struggles constitute a unique phenomenon that must be understood from an

intersectional perspective, which takes into account not only gender, but also the

social, economic and cultural context in which it develops.

The objective is to analyze forced disappearance and its impact on the human

dignity of the victims.

METHOD

This study was developed under a qualitative and descriptive methodology, focused

on the collection, analysis and comparison of documentary sources related to

enforced disappearance and its impact on human dignity. Thirteen academic articles

were selected from journals specialized in law, human rights, social sciences and

psychosocial studies, with the aim of providing a comprehensive and

multidisciplinary view of the phenomenon of enforced disappearance, covering its

legal, psychological and social dimensions.

The documentary analysis technique was used to examine key categories related to

the crime of enforced disappearance, such as criminalization, training of security

forces, reparation of violated rights and the psychosocial impact on victims and their

families. Each reference was selected based on its relevance to address the issue

from a specialized perspective, ensuring that the research included studies from

different jurisdictions, such as Latin America and Europe, allowing a comparative

analysis of the strategies implemented and the challenges present in each region.

For the comparative analysis, the studies were grouped into thematic categories

that reflect the different facets of the problem, such as the focus on prevention,

prosecution of crime, victims' rights and psychosocial impacts. Based on this

classification, a contrast was made between the different national and international

approaches, highlighting the main deficiencies in the application of the law, the

normative gaps and the limitations in the systems of reparation of the rights of the

victims of enforced disappearance.

Truth and Law

Refereed Journal of Juridical and Social Sciences

Vol. 3(3), 18-28, 2024

https://doi.org/10.62574/xddwhr29

ANALYSIS OF RESULTS

The results of the research are presented:

Table 1. Enforced disappearance and its impact on the human dignity of the victims.

REFERENCE

DOCUMENTARY

CATEGORY

MAIN TOPIC

COMPARATIVE

ANALYSIS

Arana-Borja, Y. A., &

Cruz-Piza, I. A. (2023)

Prevention and police

training

Analysis on the

prevention of kidnapping

and the importance of

police training and

citizen participation.

Relates enforced

disappearance to other

crimes such as

kidnapping and

highlights the lack of

police training in many

regions of Latin America.

Basaure-Miranda, Isaac

Marcelo. (2018)

International Criminal

Law

The crime of enforced

disappearance in Latin

America and its criminal

classification.

Emphasizes the need to

strengthen international

cooperation and

sanctions for enforced

disappearance,

comparing legal

frameworks in various

Latin American countries.

Camacho-Quirós, José

David. (2024)

Psychosocial Impact

Analysis of the

psychosocial effects on

the families of

disappeared persons in

Latin America.

The psychosocial impact

is greater in regions with

high levels of impunity,

where families lack

access to justice and

reparations.

Durán-Mantilla, J. G.,

Sandoval-Mesa, J. A., &

Moreno Durán, Álvaro H.

(2021)

Justice and Reparations

Relationship between

enforced disappearance

and higher values from

Michael Sandel's ethics

of justice.

Compared to other

regions, Latin America

lacks a comprehensive

system of reparations

and effective justice for

the victims of enforced

disappearance.

Friend-Macías, R., &

Naveda-Vera, M. C.

(2018)

Civil and Criminal Law

Legal relationship

between presumed

death and enforced

disappearance in the

Civil Code.

In countries with less

developed legal systems,

the confusion between

disappearance and

presumed death affects

the victims' right to be

recognized.

Hernández-Brussolo,

Ricardo, et al. (2022)

Psychology and Mental

Health

Psychological

repercussions on

secondary victims of

enforced disappearance.

Compared to other

crimes, enforced

disappearance generates

a deeper psychological

impact due to the

prolonged uncertainty

experienced by families.

León, S., & Villa, D.

(2019)

International

Jurisprudence

Analysis of enforced

disappearance in the

jurisprudence of the

European Court of

Human Rights.

In Europe, enforced

disappearance has

received more judicial

attention, while in Latin

America, cases continue

to be treated with

impunity and delays.

Truth and Law

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Vol. 3(3), 18-28, 2024

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Mejía-Naranjo, C. N., et

al. (2023)

Right to Truth

Violation of the right to

truth in the Guachalá

Chimbo vs. Ecuador case.

The Guachalá case is

representative of the lack

of access to truth in

Ecuador, a common

situation throughout

Latin America in cases of

enforced disappearance.

Romero-Sáenz, Laura

Camila, & Cuellar-

Cuellar, Viviana

Katherine. (2022)

Psychosocial Impact

Psychosocial impacts on

relatives of victims of

enforced disappearance.

Similar to other

psychosocial studies, it

confirms that relatives

suffer from post-

traumatic stress and

other sequelae,

aggravated by the lack of

justice.

Rosas-Villicaña, Rosa

María. (2020)

Human Rights and

Justice

Truth and justice for

disappearance victims in

Mexico.

Compared to other

countries, Mexico faces

high levels of impunity

and a lack of resources

for the search and

reparations for victims of

disappearance.

Sferrazza-Taibi, Pietro.

(2019)

International Law

Definition of enforced

disappearance in

international law.

At the international level,

there is a lack of

consensus on the

classification and

treatment of enforced

disappearance in some

national legal systems.

Tamayo-Arango, A. S., &

Arenas-López, K. (2021)

Gender Studies and

Human Rights

Impact of enforced

disappearance on

multiple maternities and

absences.

Enforced disappearance

affects women and

mothers differently,

generating new forms of

struggle for truth and

justice, in contrast with

other victims.

Source: Own elaboration.

The documentary analysis (Table 1) shows that forced disappearance constitutes

one of the most serious human rights violations and represents a multifaceted

challenge in both the legal and social spheres. This crime, typified in international

law, not only implies the physical disappearance of a person, but also carries with

it a series of legal, psychological and social repercussions that affect the direct and

indirect victims, as well as state institutions and the social fabric in general. The

comparative analysis of enforced disappearance and its implications for human

dignity, based on the references reviewed, allows us to observe profound

differences in the approach and treatment of this crime in various jurisdictions.

Truth and Law

Refereed Journal of Juridical and Social Sciences

Vol. 3(3), 18-28, 2024

https://doi.org/10.62574/xddwhr29

In the first place, enforced disappearance presents an operational gap in the training

of security forces and in the training of officials responsible for its prevention and

investigation. In this order, Arana-Borja & Cruz-Piza (2023) expose the importance

of police training and citizen participation as key elements in the prevention of

crimes such as kidnapping and enforced disappearance. Despite this, in much of

Latin America there is a structural deficiency in the preparation of law enforcement

agencies, which compromises their ability to act effectively against these crimes.

This shortcoming not only perpetuates impunity, but also deepens the sense of

vulnerability and lack of protection for victims and their families, who often have to

deal with inefficient and, in many cases, corrupt judicial systems.

On the other hand, the analysis of the criminalization of enforced disappearance in

Latin America conducted by Basaure-Miranda (2018) highlights the lack of

uniformity in national regulations regarding this crime. Although enforced

disappearance has been recognized as a crime against humanity by international

law, cooperation between Latin American States and the implementation of effective

measures for its prosecution and punishment still present significant gaps. This is

reflected in the small number of cases that reach trial and the difficulty in convicting

those responsible, which reinforces the climate of impunity. In contrast to Europe,

where international courts, such as the European Court of Human Rights, have been

more active in their jurisprudence on enforced disappearances, Latin America still

shows a marked weakness in this regard, despite having a large number of victims

and emblematic cases.

The psychosocial impact of enforced disappearance is also a central issue in the

discussion. In this regard, Camacho-Quirós (2024) and (Romero-Sáenz & Cuellar-

Cuellar, 2022) highlight the psychological and emotional impacts that this crime has

on the families of the victims. Prolonged uncertainty, lack of information and the

absence of justice generate a state of suspended grief in family members, which

translates into anxiety disorders, depression and post-traumatic stress. In many

cases, families are forced to undertake long struggles for the truth, in a context of

total impunity and negligence on the part of the State, which aggravates their

suffering. In Europe, judicial intervention has been more effective in some cases,

Truth and Law

Refereed Journal of Juridical and Social Sciences

Vol. 3(3), 18-28, 2024

https://doi.org/10.62574/xddwhr29

while in Latin America, the State's response remains insufficient, increasing the

emotional burden on indirect victims.

The study by Durán-Mantilla et al. (2021) introduces an ethical and philosophical

perspective around the reparation of the higher values of justice. This analysis

reveals how enforced disappearance not only affects direct victims, but also

undermines fundamental principles of the rule of law, eroding trust in judicial

institutions. The lack of effective reparations for victims and their families constitutes

an additional violation of rights, which is exacerbated by the failure of the state to

guarantee access to truth and justice. This institutional deficit is not exclusive to

Latin America; however, in this region the structural weakness of the judicial systems

aggravates the situation, which contrasts with other international contexts where

more progress has been made in the judicialization and reparation of these cases.

Another relevant aspect in the analysis is the confusion between enforced

disappearance and presumed death in less developed legal systems, as exposed by

Friend-Macías & Naveda-Vera (2018). This confusion has direct consequences on

the right of victims to be recognized and on reparation processes. In systems where

there is no clear differentiation between enforced disappearance and presumed

death, families are deprived of the possibility of seeking justice, as the disappeared

are treated as dead without the necessary investigations to clarify the facts. This

generates a double victimization: on the one hand, the loss of the loved one and,

on the other, the impossibility of obtaining justice or adequate reparation.

The gender dimension of enforced disappearance also emerges as a critical issue,

especially in the case of women victims or relatives of the disappeared. Accordingly,

Tamayo-Arango & Arenas-López (2021) explore how enforced disappearance

particularly affects women, as mothers, wives, and daughters of victims. These

women not only face the emotional burden of loss, but are also forced to assume

the role of advocates for the rights of their loved ones, often in a context of violence,

discrimination, and exclusion. Enforced disappearance thus generates new forms of

motherhood and struggle, in which women are forced to rebuild their identities and

communities in the midst of suffering and impunity.

Truth and Law

Refereed Journal of Juridical and Social Sciences

Vol. 3(3), 18-28, 2024

https://doi.org/10.62574/xddwhr29

Ultimately, enforced disappearance continues to be a legal and social challenge that

calls into question the effectiveness of States in protecting their citizens and

ensuring justice. The comparative analysis reveals that, while some regions have

made progress in the criminalization and prosecution of these cases, Latin America

continues to face serious deficiencies in terms of prevention, investigation and

punishment of this crime. The lack of access to the truth and the absence of effective

reparations perpetuate the violation of the rights of both direct and indirect victims,

undermining the principles of human dignity and justice that should guide legal

systems.

CONCLUSIONS

Enforced disappearance continues to be a complex challenge that profoundly

impacts the foundations of the rule of law and the protection of human rights. This

crime, which transcends the physical affectation of the victims to generate

devastating psychosocial consequences in their families and communities, demands

a forceful and efficient legal response from the States. The lack of homogeneous

criminalization, insufficient training of security forces, and gaps in the mechanisms

of justice and reparation aggravate impunity, perpetuating the violation of

fundamental rights.

FINANCING

Non-monetary

CONFLICT OF INTEREST

There is no conflict of interest with persons or institutions related to research.

ACKNOWLEDGMENTS

To the research department of the Universidad Regional Autónoma de los Andes.

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