The most recent print edition of the Harvard Human Rights Journal features an article co-authored by Clinical Director Susan Farbstein, Americas Director at the International Federation for Human Rights Jimena Reyes, and clinical alumni Sabrina Ochoa, JD ’24, Rebecca Gore, LLM ’23, Adriana Bones, JD ’24, Nitika Khaitan, LLM ’23, and Victoria Abut, JD ’24. The article, which grew of out of a clinical project related to accountability for enforced disappearances in Mexico, is entitled “Harmonizing Legal Approaches to Enforced Disappearances: Evidentiary Challenges, Emerging Developments, and the Role of Non-State Actors.” 

While working during the 2022-2023 academic year on behalf of a client whose husband and brother had been disappeared in Mexico, the clinical team was frustrated by the profound information imbalance between victims of enforced disappearances and the states that commit or enable such abuse. The team saw how evidentiary obstacles are even more pronounced in contexts of extreme violence and widespread impunity, like Mexico, where non-state actors such as drug cartels and other organized criminal groups often perpetrate enforced disappearances. 

In May 2023, the U.N. Committee on Enforced Disappearances (“CED” or “Committee”) promulgated a statement offering new guidance on the role of non-state actors in enforced disappearances. The statement has potentially significant implications for many individuals seeking justice before the Committee. The clinical team felt that its prior work could inform an analysis, critique, and interpretation of the CED’s new approach.  As Rebecca Gore explained, “Taking our experiences and challenges with the petition for an enforced disappearance case in Mexico and transforming it into an academic publication allowed us to, first, acknowledge that the evidentiary hurdles we encountered were widespread and, second, spotlight the excellent work of civil society organizations and victim collectives.” 

The resulting article evaluates the extent to which the CED’s new statement may benefit victims and survivors before the Committee, through the lens of  the ongoing crisis of disappearances in Mexico. It considers how the CED has drawn from, and harmonized its approach with, other U.N. treaty bodies as well as international and regional courts to determine the boundaries of enforced disappearances under international law.  

The article finds some promising developments from the perspective of victims and survivors. These advancements include the CED’s understanding of state acquiescence and the role of structural impunity, as well as its willingness to shift the burden of proof given information asymmetries between states and victims. The CED’s recognition that non-state actors can commit enforced disappearances, even when there is no link to the state, is also laudable.  

However, the article also raises cause for concern. In particular, it argues that the statement does not sufficiently close the divide between Articles 2 and 3 of the International Convention for the Protection of All Persons from Enforced Disappearance. It therefore perpetuates a troubling hierarchy in which only some victims will have access to the Convention’s protections and remedies, including reparations.  

“As an advanced clinical student interested in legal practice and academia, it was helpful to see the synergy between human rights work and academic activism,” Gore said. “I hope that the article prompts debate to ensure victims of enforced disappearances can effectively seek truth and justice.”