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Open Access 2025 | Open Access | Buch

Failure of the State

Organised Crime and Mexico's Disappeared

verfasst von: Lene Guercke

Verlag: Springer Nature Switzerland

Buchreihe : Interdisciplinary Studies in Human Rights

Enthalten in: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

Inhaltsverzeichnis

Über dieses Buch

This Open Access book explores an issue that has received little attention in human rights research: organised criminal groups (OCGs) as perpetrators of human rights violations, especially disappearances. It takes an interdisciplinary approach, combining doctrinal legal research with a qualitative study on present-day disappearances in Mexico. Disappearances are a complex human rights violation that impacts not only the disappeared person but also their relatives, who are left in a limbo of uncertainty about their loved one’s fate. Originally part of state-led repression, today disappearances occur in varied contexts, often involving OCGs and other non-state actors. However, disappearances committed by non-state actors are not human rights violations under International Human Rights Law (IHRL), thereby potentially leaving a gap in the legal protection of victims. The book first analyses state obligations and case law involving state responsibility for human rights violations committed by non-state actors and applies the analysis to OCGs. This ‘internal’ legal perspective is complemented by an ‘external’ study based on interviews with human rights practitioners working on disappearances in Mexico, which often involve OCGs. The qualitative study offers a unique perspective on human rights protection ‘in reality’.

The book adds to scholarship on non-state actors and disappearances, and to incipient international legal scholarship on the issue of organised crime and international law. Moreover, the study on Mexico provides a richer understanding of challenges faced by practitioners ‘on the ground’ where OCGs commit human rights violations alongside, or in collusion with, state forces and against the backdrop of an overall failure of the state. The book may be of interest to a diverse audience, including legal scholars and practitioners, human rights scholars in fields such as political science, international relations, or socio-legal studies, as well as funders supporting the work of NGOs in Mexico and similar contexts, and NGOs themselves.

Inhaltsverzeichnis

Frontmatter

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Chapter 1. Introduction

Abstract

This introductory chapter presents the issue of disappearances committed by organised criminal groups (OCGs) and outlines the legal questions such disappearances raise from the perspective of International Human Rights Law (IHRL). These questions constitute the ‘puzzle’ from which the book departs. The chapter further situates the book within existing scholarship and discusses the scholarly gaps regarding disappearances committed by OCGs, as well as the importance of interdisciplinary approaches to academic research in the field of human rights. After providing an overview of the book’s structure, the remainder of the chapter outlines the methodological approach that combines doctrinal legal research (an ‘internal’ perspective) and a qualitative study on the Mexican context (an ‘external’ perspective) and discusses reflexivity. Finally, the Introduction clarifies the use of the key terms throughout the book.

Lene Guercke

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Chapter 2. State Obligations Relating to Disappearances Committed by Non-State Actors

Abstract

This chapter examines states’ obligations in relation to disappearances committed by non-state actors under International Human Rights Law. It begins by analysing obligations under a variety of human rights instruments relating to the different rights that can be violated as a result of a disappearance committed by a non-state actor, such as the rights pertaining to physical integrity. These encompass obligations to prevent, investigate and remedy. After briefly introducing the concept of positive obligations in relation to harm caused by non-state actors, the chapter explores how these obligations have been articulated in select case law involving disappearances committed by non-state actors, or cases that deal with similar situations, such as kidnappings or human trafficking. The analysis draws on jurisprudence of the Human Rights Committee, the European Court of Human Rights, and the Inter-American Court of Human Rights. The second part of the chapter focuses on the obligations of states under the International Convention for the Protection of all Persons from Enforced Disappearance, which is the only human rights instrument concerned with enforced disappearances that specifically establishes obligations in relation to disappearances committed by non-state actors. The analysis shows that states have clear obligations regarding the investigation of disappearances committed by non-state actors and holding those responsible to account. They should also take preventive measures. However, there continue to be gaps when it comes to the obligation to provide reparations to victims of disappearances committed by non-state actors, and their relatives, which requires a prior determination of responsibility.

Lene Guercke

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Chapter 3. State Responsibility for Disappearances Committed by Non-State Actors

Abstract

Building on the analysis of state obligations provided in Chap. 2, this chapter explores the determination of state responsibility in relation to disappearances committed by non-state actors, based on the rules enshrined in the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) and an analysis of jurisprudence of the European and Inter-American human rights courts (ECtHR and IACtHR) and United Nations treaty bodies. The chapter begins by examining under what conditions disappearances committed by non-state actors can be directly attributed to the state, based on the general criteria for attribution established in the ARSIWA, and then, more specifically, based on the notions of ‘authorisation, support or acquiescence’ contained in the IHRL definition of ‘enforced disappearance’ as lex specialis to the general rules. This includes a review of how ‘acquiescence’ has been established by UN treaty bodies, the ECtHR and the IACtHR and an analysis of the definition provided by the Committee on Enforced Disappearances. Second, for cases where a violation cannot be directly attributed to a state, the latter can still be responsible for failing to meet its positive obligations to prevent and respond. Therefore, the chapter proceeds to analyse approaches by regional and international human rights bodies to determining state responsibility in cases involving non-state actors as perpetrators of disappearances or other human rights violations. The analysis focuses mainly on the determination of responsibility for a failure to prevent and on case law by the ECtHR and IACtHR, as there is little case law of this nature by UN treaty bodies. The chapter ends with a description of the two prevalent approaches used, based either on the state’s awareness of a risk to a specific victim, or the source of risk to a wider group of potential victims, and highlights uncertainties regarding disappearance cases arising from a conflation of preventive and investigative obligations.

Lene Guercke

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Chapter 4. State Responsibility for Disappearances Committed by Organised Criminal Groups

Abstract

This chapter focuses exclusively on organised criminal groups (OCGs) as perpetrators of disappearances and assesses the extent to which victims of such disappearances, and their relatives, are protected by the current international legal framework. After briefly outlining the different manners in which OCGs can be involved in the commission of disappearances, it uses the international legal framework for the suppression of transnational organised crime and corruption as possible lex specialis to determine the content of state obligations to prevent and respond to disappearances committed by OCGs. This framework includes the United Nations Convention against Transnational Organised Crime, its Protocols on Human Trafficking and Smuggling, and the United Nations Convention against Corruption. While these instruments have a different objective from human rights instruments, some provisions can nevertheless be drawn on to delineate the content of preventive obligations relating to disappearances committed by OCGs, as well as of the obligation to provide an effective remedy, particularly in cases involving human trafficking. In the absence of jurisprudence addressing OCGs as perpetrators of disappearances, or human rights violations more broadly, the chapter concludes with a normative proposal for how the determination of state responsibility should be approached in cases involving disappearances committed by OCGs. The proposal draws on the different approaches described in Chap. 3 and the particularities of OCGs as a non-state actor, which include its relationship to the state, and corruption and impunity as structural enablers.

Lene Guercke

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Chapter 5. The Situation of Disappearances in Mexico

Abstract

This chapter introduces the situation of disappearances in Mexico since the onset of the ‘war on drugs’ in late 2006. It first provides an overview of the main characteristics of disappearances in Mexico today, including victims, perpetrators, and the country’s ongoing forensic crisis. Following this, it presents the domestic Mexican legal framework relating to disappearances and the protection of victims, especially the General Law on Enforced Disappearance, Disappearance Committed by Private Individuals and the National Search System and contrasts it with the international framework examined in previous chapters. Drawing on the analysis provided in Chaps. 2–4, the chapter then explores the responsibility of the Mexican state for disappearances committed by organised criminal groups (OCGs) from an international legal perspective, including the question of acquiescence and whether forensic negligence could be considered a form of enforced disappearance. It finalises with a brief outline of broader legal discussions surrounding the so-called ‘war on drugs’ in Mexico, which concern its classification as a non-international armed conflict under international law, as well as the question of whether disappearances in the country can be considered as falling within the definition of enforced disappearance as a crime against humanity in International Criminal Law. The aim of this overview is to provide the necessary background information to the interviews conducted with human rights professionals, which are the focus of the following chapter.

Lene Guercke

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Chapter 6. Uncertainty, Pragmatism, and Frustration: the Experiences of Human Rights Practitioners Working on Disappearances in Mexico

Abstract

This chapter provides a description of the experiences of human rights practitioners working on the issue of disappearances in Mexico based on 33 in-depth interviews conducted in 2019. The interviews were aimed at understanding the participants’ experiences of working in a context where organised criminal groups (OCGs) perpetrate disappearances, including challenges they face in their work, and how the legal questions examined in Chaps. 2–4 impact their work in practice, if at all. After briefly discussing some of the geographic differences between experiences shared by participants, the experiences are summarised in three inter-related themes: uncertainty, pragmatism, and frustration. Each theme is described and illustrated with quotes from the interviews. Broadly speaking, the overarching themes correspond to a dimension of the participants’ experience: the context in which they work (uncertainty), the actions that they have taken and continue to take (pragmatism), and their emotional reaction (frustration). ‘Uncertainty’ is composed of several sub-themes: the lack of information; the complexity of the situation, including ongoing insecurity; and conceptual difficulties that include the legal classification of crimes and grasping the state’s responsibility. Uncertainty also creates several practical dilemmas. Second, ‘pragmatism’ describes the adaptation of working methods by participants, principally in response to the needs of relatives of the disappeared. Finally, ‘frustration’ describes the emotional reaction by participants to the context in which they work, the scale of the crisis, the perceived indifference by society, and the absence of tangible change in the situation despite significant achievements at legal and institutional levels. A summary of the themes and their relationship to each other indicates that the state’s actions and omissions lie at the intersection of all themes, illustrating the states’ complete protection failure.

Lene Guercke

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Chapter 7. Mexico’s Protection Failure

Abstract

This chapter explores how the experiences of human rights practitioners in Mexico, as described in Chap. 6, and the notion of an overall protection failure of the state, can be drawn on to think critically about the protective capacity of International Human Rights Law (IHRL) in relation to disappearances committed by organised criminal groups. The dimensions of the state’s protection failure that are of particular relevance for the analysis, based on participants’ views on the responsibility of the state, are: the all-encompassing nature of the protection failure; its blatancy and ‘slipperiness’, which includes the question of intentionality; and the meta-uncertainty surrounding disappearance as a result of the state’s protection failure. Building on these dimensions, the chapter uses analytic perspectives from human rights compliance, sociological and legal scholarship to reflect on IHRL’s protective capacity based on the Mexican context. From the perspective of human rights compliance scholarship and the concept of ‘areas of limited statehood’, the difficulty of separating state and criminal actors in the Mexican context, as well as the apparent intentionality behind the state’s failure to protect, indicate a need for further research on the notion of willingness. From the perspective of socio-legal scholarship and Stanley Cohen’s concept of interpretive denial, the Mexican context highlights the limits and potential ‘trap’ of over-legalisation. Finally, returning to IHRL, a potential ‘intentionality’ behind an apparent lack of capacity to protect human rights is not considered in the ‘objective’ determination of state responsibility, thereby leaving a gap that might be addressed by revisiting the concept of ‘state criminality’ in international law and developing new concepts, such as ‘state gross negligence’ or ‘state recklessness’.

Lene Guercke

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Chapter 8. Conclusion

Abstract

The concluding chapter discusses the findings from the doctrinal and empirical analyses in order to reflect critically on the protective capacity of IHRL vis-à-vis victims of disappearances committed by OCGs, and their relatives. IHRL can be seen as providing some protection to victims of disappearances committed by OCGs, and their relatives, if the determination of state responsibility in such cases acknowledges the complexity of connections between states and OCGs. Nonetheless, approaches to state responsibility for a failure to prevent presently do not allow to fully capture an overall protection failure by the state, which permits disappearances by OCGs to be committed, as illustrated by the Mexican context. The study on Mexico also highlights the limits of thinking about ‘protection’ from a purely legal perspective. Indeed, an over-emphasis on legal approaches can be a ‘trap’ that does not lead to actual change and facilitates denial of responsibility by the state. At the same time, the continued relevance of international legal standards as tools for human rights work indicates a continued need to further explore how a lack of willingness might be incorporated into determining state responsibility for a failure to prevent. The conclusion ends with suggestions for further research in both law and social sciences and a personal reflection by the author.

Lene Guercke

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Titel: Failure of the State
verfasst von: Lene Guercke
Verlag: Springer Nature Switzerland
Electronic ISBN: 978-3-031-83717-3
Print ISBN: 978-3-031-83716-6
DOI: https://doi.org/10.1007/978-3-031-83717-3