Global Human Rights Defence

Garzón Guzman and others vs Equator : An overview of enforced disappearances in Latin America
Image’s credit: Mayra Caiza, image’s source: olvido-el-tiempo-y-el-estado-por-mayra-caiza/

Author: Bethânia Godinho
GHRD intern: International Justice and Human Rights Team
Master: Ruhr University Bochum / European Master in Human Rights and Democratisation. (E.MA), Global Campus of Human Rights, Venice, Italy.

1. A background of Enforced Disappearances: Its origins and evolution
The exact origin of enforced disappearance as a method of repression and suppression of political opponents is difficult to determine (Ballesteros, 1995) . It was widely used by the USSR at the beginning of the 19 30 s as a systematic tool of repression; it was also part of the crimes executed by the Nazi regime during the Second World War 2 ( Pareyre, 1999). Most of the doctrine considers that the forced disappearance of persons has an antecedent in the so-called Nacht und Nebel Decree, also known as the Night and Fog or N.N. Decree, signed on December 7, 1941, by the supreme commander of the Armed Forces of the Third Reich, Adolf Hitler 3 (López Cárdenas, 2018).

After World War II, the use of enforced disappearance s as a method of terror and repression of political opponents ha d spread throughout the world . However, the advent of military governments and dictatorships in Latin America caused this phenomenon to be identified to a greater degree with the events that occurred in the region between the 1960s and 1990s (Ballesteros, 1995) . It is important to mention two key events that preceded the period in which enforced disappearances occurred : the disappearing of corpses in El Salvador in 1932, after the massacres perpetrated by the regimen of Hernandez Martinez; this practice was also performed during the military government of the military strongman Colonel Henrique Peralta, in Guatemala between 1963 and 1966 (Thiessen, 1988) .

During the dictatorship period, a reality for most Latin American countries, enforced disappearance s were widely used as a strategy to deter regime opponents and as a method of repression. In almost all of Latin America, clandestine places of detention were established or adapted where the missing persons were subjeced to interrogation and torture (Ballesteros, 1995) . A result of the generalized State repression against all dissidents led to the death , tortur e and disappear ance of thousands of people . With the return to democracy, processes of mobilization and visibility revealed what had happened in the years in which the complicit silence of the authorities and impunity were the norm.

Despite the gravity of the countless enforced disappearances perpetrated in Latin America, at the international level, the first reaction of the Organization of American States took place in 1974 in relation to the missing persons in Chile ( Thissen, 1998). The Resolution 666 (XIII-083) of the General Assembly of the Organization of American States, approved in November 1983, established in Article 4 : “To declare that the practice of forced disappearance of persons in the Americas is an affront to the conscience of the hemisphere and constitutes a crime against humanity ” (OAS, 1983) 

Over the course of two decades, the practice of enforced disappearances had spread to El Salvador, Chile, Uruguay, Argentina, Brazil, Colombia, Ecuador, Peru, Honduras, Bolivia, Haiti and Mexico. Human rights organizations maintain that, in a timespan of approximately twenty years (1966-1986), 90.000 had become victims in different Latin American countries ( Thissen, 1998) . With the establishment of dictatorships, the phenomenon of the enforced disappearance of persons, although practiced in dozens of countries, was absent from the international agenda. It was t he pressure of relatives in two cases – Chile and Cyprus – that made the United Nations pay attention to this phenomenon ( Thissen, 1998) .

In 1978, the United Nations General Assembly enacted Resolution nº 33/173 calling the states “to allocate the necessary resources for the search for missing persons, law enforcement and respect for the human rights of individuals” (UNGA, 1978) . In the resolution, the General Assembly evoked the provisions of the Universal Declaration of Human Rights which are violated in the practice of enforced disappearance s : the right to life, liberty and security of person, freedom from torture, freedom from arbitrary arrest and detention , and the right to a fair and public trial . ( Scovazzi & Citroni , 2007)

2. Definition of Enforced Disappearance

In the early ’80s, the United Nations Commission on Human Rights constituted a working group to address the problems arising from missing and disappeared persons. In 1992, the United Nations General Assembly, in Resolution 47/13 , adopted the Declaration on the Protection of All Persons from Enforced Disappearance. The Declaration gave the first internationally agreed definition of the offence of enforced disappearance. It also provided a set of rules that all the States of the United Nations were called upon to apply as a minimum to prevent and suppress the practice ( Scovazzi & Citroni, 2007) . The Declaration has symbolic and moral value , however, it is not binding. 5

On June 9, 1994, the General Assembly of the Organization of American States approved The Inter-American Convention on Forced Disappearance of Persons. In Article II, the instrument considers as forced disappearance: “the deprivation of liberty of one or more persons, in whatever form, committed by agents of the State or by persons or groups of persons acting with the authorization, support, or acquiescence of the State, followed by a failure to inform or a refusal to acknowledge such deprivation of liberty, or to report the whereabouts of the person, thereby impeding the exercise of legal remedies, due process of law and relevant procedural guarantees” (Inter American Convention on Forced Disappearance of Persons, 1994)

The fact that the first international legally binding instrument on enforced disappearances was promoted by Latin American countries has a strong symbolic value. According to the jurisprudence of the Inter-American Court of Human Rights, the enforced disappearance of persons is a violation of human rights, which has special characteristics ; one of the elements that characterize this type of violation is that it is a multiple and complex violation of rights due to its continuity . In general, the 1994 Interamerican Convention represents a significant step forward in international human rights law . I t provides an internationally agreed definition of the offence and qualifies the systematic practice of disappearance as a crime against humanity for the first time in a binding instrument . Moreover, the 1994 Interamerican Convention includes positive and innovative provisions regarding the continuing nature of the offence, the exclusion of the competence of military or special tribunals , and amnesty laws or similar measures.

The Convention for the Protection of all Persons from Enforced Disappearances was adopted by the UN General Assembly on December 20, 2006. It is the first universally binding treaty that defines enforced disappearance as a human rights violation and prohibits it. The Convention, which entered into force on 23 December 2010 , places an obligation on states to investigate acts of enforced disappearance , to bring those responsible to justice and to reduce the likelihood that people will go missing . Furthermore, it contains other obligations of a preventive measure: people deprived of their liberty have a right to be kept in an official place, to be registered and to communicate with their family and counsel (ICRC, 2016) .

The Convention also recognizes the right of families to know the truth regarding the circumstances and fate of the disappeared person, as well as the right of victims to reparation . Besides , t he C onvention establishes an international committee of ten independent experts to monitor the implementation of the rights and obligations agreed upon by States (ICRC, 2016) . The Convention defines enforced disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law” ( Convention for the Protection of all Persons from Enforced Disappearances, 2006) . Hence, enforced disappearance constitutes a combination of crimes against life, liberty, security and physical integrity , and psychological integrity of the victim, by means of which the victim is placed in a situation of absolute defenselessness by his or her captors.

The person held in custody disappears, leaving him completely vulnerable to his aggressors, with out contact with his family and at risk of an attempt on his life or integrity. According to Carlos Maurício López Cadenas, the forced disappearance of persons is materialized when three conditions are successively facilitated: the deprivation of liberty against the will of the detained person, the intervention of State agents, directly or indirectly, and the refusal to acknowledge the detention and reveal the fate or whereabouts of the disappeared person, removing him from the protection of the law ( López Cárdenas , 2018) 

Moreover , the Rome Statute of the International Criminal Court, in A rticle 7, considers enforced disappearance as a crime against humanity, since it is “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (ICC, 1998) . The Rome Statute defines enforced disappearance, in A rticle 7, paragraph 2, i, as “the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged time “ (ICC, 1998) .

It is important to mention the relevant contribution of i nternational jurisprudence on the development of international rules to fight enforced disappearance . B efore the adoption of specific instruments to deal with the enforced disappearance, the judgments and views of international courts and committees applying general treaties on human rights have been the only means for the establishment of normative principles regarding the subject ( Scovazzi & Citroni, 2007) 

Between 1988 and 1989 , the Inter – American Court rendered its first three judgments on cases related to enforced disappearance that took place in Honduras: the case Velásquez Rodríguez v s. Honduras, the case Godinez Cruz vs . Honduras , and the case Farién Garbi y Soles González vs. Honduras. These three cases are, according to the Professor Siddartha Legale, part of the foundational cases of the Inter-American Court of Human Rights ( Legale , 2021) .

The case Velásquez Rodríguez v s. Honduras was the first sentence of an international tribunal regarding enforced disappearance and defined it as “a complex form of violation of human rights that must be understood and addressed in a comprehensive manner ” (Velázquez Rodriguez vs. Honduras, 1988) . Moreover, the case stated that the enforced disappearance promotes “a multiple and continuing violation of numerous rights recognized in the Convention and which States Parties are obliged to respect and guarantee ” (Velázquez Rodriguez vs. Honduras, 1988) . The case Godinez Cruz vs. Honduras determined that enforced disappearance as “a continuing wrongful act, which does not cease until the whereabouts of the disappeared person or his or her remains are determined” and also states that the practice of disappearances, in addition of violating many provisions of the Convention, is a radical breach of the American Convention of Human Rights ( Godínez y otros vs. Honduras , 1989) .

The jurisprudence of the Inter – American Court of Human Rights was the first step towards the consolidation of a comprehensive perspective of the plurality of the rights affected and of the permanent nature of the concept of enforced disappearance of persons. The concept adopted by the Court was established in the case Velázquez Rodriguez vs. Honduras that the act of disappearance and its execution begin with the deprivation of liberty of the person and the subsequent lack of information on his or her fate, and remain as long as the whereabouts of the disappeared person are not known or are not identified with certainty. ( Velázquez Rodriguez vs. Honduras, 1988)

3. Enforced Disappearances in Ecuador: the Case of Garzón Guzman vs Ecuador

In the period of 1984-1988, Raul León Febres Cordero was the president of Ecuador. During his rule , a State policy was designed and executed in the framework of which illegal deprivations of liberty, torture, extrajudicial executions and enforce d disappearances were committed in a systematic and widespread manner (Comi sión de la Verdad, 2010) .

In this context, his government was marked by a context of repression to confront the so-called “subversive groups”, in particular “Alfaro Vive Carajo” and “Montoneras Patria Libre”, under the idea that they consisted of people that posed a threat to the security of the community and the country. In this context, the SIC- 10 was created: a repressive police structure that emerged from the Criminal Investigation Service (SIC) and which, in a clandestine manner, was in charge of “repressing and annihilating” members of “Alfaro Vive Carajo” and other organizations ( Comisión de la Verdad, 2010) . The other subsequent government administrations, between 1988 and 2008, also registered cases of human rights violations. 6

In this framework, the disappearance of César Gustavo Garzón Guzmán occurred . Guzmán was a writer who was writing his doctoral thesis. He was also a workshop leader at the Casa de la Cultura Ecuatoriana and worked for the publishing house ” El Conejo “. He disappeared in Quito in 1990. On the day of the events, Garzon, 32 years old at the time, was with a group of friends in a discotheque, which was the last place where he was seen. His family, noticing that he did not return home, started looking for him and went to the Criminal Investigation Service of Pichincha to report the disappearance. On November 16, 1990, a formal complaint was filed along to the multiple public complaints previously filled and press information about the case was disseminated in 2003. For more than twenty years, no judicial investigation was opened to establish what happened with Guzmán. This only occurred after the work of the Truth Commission of Ecuador. In spite of this, the State did not provide any explanation of the absence of a judicial investigation of the case for more than twenty years ( Garzón Guzmán y otros vs Ecuador , 2021) .

The case of Guzmán was featured in the “Sin Verdad no Hay Justicia” , a document issued by the Truth Com m ission of Ecuador , and the case was described as an “enforced disappearance in which it is presumed the responsibility of the National Police” ( Comisión de la Verdad, 2010 ) . The State of Ecuador recognized that “the response of the national authorities was incompatible with international human rights standards and affected the rights alleged by the Commission to have been violated ” ( Garzón Guzmán y otros vs. Ecuador, 2021 ) 

In the sentence, the Inter-American Court of Human Rights ruled that “the State of Ecuador must carry out, as soon as possible, a rigorous and systematic search with adequate human and economic resources, in which it must make every effort to determine the whereabouts of César Gustavo Garzón Guzmán ” ( Garzón Guzmán y otros vs Ecuador, 2021) . Moreover, it added that the State must “continue and carry out, within a reasonable period of time and with the greatest diligence, the investigations necessary to identify, judge and, if necessary, punish those responsible for the disappearance” ( Garzón Guzmán y otros vs Ecuador, 2021 )

One vital aspect of the crime of enforced disappearance is that the relatives of the victim are also recognized as full victims. When someone goes missing, the family is deeply affected due to the sudden separation and the lack of news which leads many families to proceed with an independent search for the missing person. A state of severe psychological deterioration affects the family of the disappeared person which might lead to depression, anxiety, stress, and even cases of suicide as a consequence of having been thrown into the unbearable situation of not knowing whether the loved one is dead or alive ( Scovazzi & Citroni , 2007) .

In the Garzón Guzman sentence, the Court recognized the violation of the right of personal integrity of the relatives of Garzón Guzmán. His mother, Mrs Clorinda Guzmán, suffered specific forms of suffering , due to the re-victimization when she was carrying out her activities for searching for her son. (Garzón Guzmán y otros vs Ecuador, 2021) . The uncertainty affects the emotional well-being of the families and the suffering caused by the disappearance of a loved one continues until the person’s fate has been ascertained. In addition, the families face multiple difficulties as a direct result. They may be confronted by specific legal, administrative, social and economic challenges. (ICRC, 2020) The absence of a differential approach in the context of these efforts, since the State ignored the efforts for finding Garzón Guzmán ( Garzón Guzmán y otros vs Ecuador, 2021) .

The case Garzón Guzmán y otros is the second conviction of the State of Ecuador in the Inter-American Court of Human Rights for the crime of enforced disappearance. The first conviction , in February 2017, was in the case Vásquez Durand y otros Vs. Ecuador due to the disappearance of Jorge Vasquez Durand, a Peruvian citizen. It is important to state that both disappearances occurred in different contexts: Jorge Vazquez Durand disappeared in the context of armed conflict between Peru and Ecuador in 1995 and , during the conflict, hostilities were carried out by the armed forces of both countries ; Garzón Guzmán , on the other hand, disappeared in the context of the authoritarian government that was in power in Ecuador at the time . T he two cases have one point in common: in both crimes there are clear indicators of the involvement of Ecuador`s military and police forces.

Nowadays, Ecuador’s legislation has direct references on the enforced disappearance of persons: the 2008 Constitution of the Republic of Ecuador in rticle 66, 3, c, prohibits “torture, forced disappearance and cruel, inhuman or degrading treatments and punishments”; A rticle 80 states that “proceedings and punishment for the crimes of genocide, crimes to humanity, war crimes, forced disappearance of persons or crimes of aggression to a State shall not be subject to statutes of limitations ” and prohibits the concession of the benefit of amnesty; finally, A rticle 129 states that “The National Assembly shall be able to proceed with the impeachment of the President or Vice-President of the Republic at the request of at least one – third of its members, in the case of the practice of forced disappearance ” (OAS , 2008) .

Additionally, the Organic Criminal Code, enacted in 2014, introduced a chapter regarding crimes against humanity and for the first time human rights violations as enforced disappearance s and sexual violence in armed conflict were criminalized in the instrument. A rticle 84 defined the crime of enforced disappearance as “The State agent or the person acting with his consent, who by any means, subject to deprivation of liberty to a person, followed by the lack of information or refusal to recognize such deprived of liberty or of informing about the whereabouts or fate of a person, thereby preventing the exercise of constitutional or legal guarantees, will be sanctioned with a custodial sentence of twenty-two to twenty-six years ” ( Código Organico Penal, 2014) .

4. Final considerations

Hundreds of thousands of people have been reported missing in Latin America, which has been connected to the ruling of authoritarian regimes t in most parts of the region and to the presence of armed conflict as well . In the case of Ecuador, despite the 2008 Constitution prohibit ing the practice of enforced disappearance and the concession of amnesty in crimes against humanity, it was only on January 28, 2014, with the enactment of the new Organic Criminal Code that crimes against humanity and enforced disappearance were criminalized in the country.

The Organic Criminal Code only typifies disappearance s perpetrated by State agents and does not consider other methods of disappearance s, ones that do not involve agents of the State but private individuals acting independently, without the authorization, support or acquiescence of the State, and which is generally linked to trafficking in persons, smuggling of persons or other crimes. As new forms of disappearance are becoming more noticeable, the government must act to give visibility and to implement measures to effectively prevent the occurrence of these circumstances.

Dictatorship is over in Ecuador but families of missing persons of this period are still struggling to get justice. Moreover, other forms of disappearance emerged and became relevant and need to be addressed correctly. According to the report of the Truth Commission, from 1984 to 2008, 7 people were registered as victims of forced disappearance and the whereabouts of 13 of them are still unknown ( Comisión de La Verdad, 2010) .

Furthermore, according to figures from the Attorney General’s Office, 334 people were reported missing in health entities in Ecuador, between 1973 and 2020. The whereabouts of 24 of these people are still unknown. There are 1392 victims of involuntary disappearance s in the country who have not yet been located as of 2019, according to information from the Ministry of Government of Ecuador ( Pullupaxi, P, 2021) . The Association of Relatives and Friends of Disappeared Persons in Ecuador ( Asfadec) has met 5 times with the Ecuadorian president in office, between 2013 and 2019, to demand better action by the State to address this problem ( Pullupaxi, P, 2021)

The conviction of the State of Ecuador in the case Garzón Guzman y otros is a victory not only for the families of missing persons in Ecuador , but also for mourning families from all over Latin America. The s tate is still involved in enforced disappearances throughout the region. However, the Convention for the Protection of all Persons from Enforced Disappearances, the Inter-American Convention on Forced Disappearance of Persons and the national legislations of the Latin American countries need to acknowledge that the State is not the only responsible for the disappearance of persons and the instruments need to be updated according to the reality we are facing.


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Fairuz Sewbaks
Coordinator and Head Researcher

Fairuz Sewbaks holds extensive legal knowledge regarding international human rights, with a specific focus on human rights dealings taking place in continental Africa. She holds a bachelor’s degree from The Hague University in public international law and international human rights and successfully followed advanced human rights courses at the Centre for Human Rights, University of Pretoria. She furthermore participated in the Istanbul Summer School where she was educated about the role of epidemics and pandemics in light of human rights.


Fairuz is the coordinator and head researcher for GHRD Africa. Her primary focus is to establish and coordinate long-term research projects regarding the differentiating human rights dealings of vulnerable and marginalized groups in continental Africa, as well as conducting individual research projects.

Priya Lachmansingh
Coordinator and Head Researcher, Political Advisor
(Asia & America)

Priya Lachmansingh is currently pursuing her bachelor’s degree in International & European
Law at the Hague University of Applied Science.
As GHRD’s Asia & America human rights coordinator and GHRD Political Advisor, Priya’s
prominent focus is to highlight human rights violations targeted against minority and
marginalized groups in Asia and America and to broaden GHRD reach within Dutch political
parties and as well seek domestic funding.

Jasmann Chatwal
Team Coordinator & Head Coordinator: North America

Jasmann is a political science student at Leiden University who joined GHRD in May 2021 as an intern in team Pakistan. Now, she is the team coordinator for North America and is responsible for coordinating the documentation of human rights violations in USA, Canada, and America.