22 Jun An Opportunity to End Years of Impunity: Enforced Disappearance as a Continuous Gender-Based Crime
[Gabriella Citroni is Senior Researcher in International Law and Lecturer in International Human Rights Law at the University of Milano-Bicocca. She is also senior legal advisor of the NGO TRIAL International. Aintzane Márquez is Senior Attorney at Women’s Link Worldwide. Both organizations work to ensure that crimes committed against women and girls during wartime, under dictatorships and in context of oppression do not go unpunished and to guarantee the right to reconstruction of historical truth with a gender perspective.]
Sexual and gender-based violence has been deployed against women and girls during most, if not all, armed conflicts and authoritarian regimes throughout history. Despite the increase in international attention to the gender dimension of conflicts, attention to the rights violations affecting women have yet to be integrated into many transitional justice processes in practice. Spain is a clear example of this reality, though not only for gender-based crimes, since there has been a complete lack of implementation by the Spanish authorities of transitional justice measures that conform to international standards of truth, justice and reparation. Moreover, from a human rights and a gender perspective, when examining the repression experienced by citizens during both the Civil War and Franco’s dictatorship, it is important to highlight the specific human rights violations suffered by women as it has been pointed out by the current Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of non-recurrence and former president of the Human Rights Committee (CCPR).
The Gender Dimensions of Enforced Disappearance
In January 2019, with the purpose of ending impunity for gender based crimes during the Civil Spanish War and the Franco Dictatorship, TRIAL International and Women’s Link Worldwide, in collaboration with the association Memoria de Mallorca, filed a communication before the CCPR on behalf of Francisca Alomar Jaume and Bartolomea María Riera Alomar (Tolita), the daughter and granddaughter respectively of two victims of the Franco regime.
In August 1936, husband and wife Antonio Alomar Mas and Margalida Jaume Vandrel were forcibly disappeared in Manacor (Mallorca). Margalida, who was seven months pregnant at the time, was allegedly sexually assaulted. The enforced disappearance of Margalida and Antonio had long term consequences for their two daughters who became orphans at ages 8 and 11 amidst the Civil War. The two girls were separated and sent off to live with different relatives, were forced to start working to contribute to the family economy and thus quit school. Taking these girls out of school had life-long consequences, diminished their opportunities and overall resulted in them being socio-economically disadvantaged. The stigma and fear associated with the enforced disappearance of their relatives followed them throughout life.
Sadly, the case of Margalida Jaume Vandrel and her husband is not an isolated one. During both the Spanish Civil War and the Francoist dictatorship gross human rights violations were committed against women which included rape, torture, other forms of sexual violence, public humiliation, child abduction and unlawful detention. While these crimes were also perpetrated on male victims, there is an indisputable gendered aspect to the manner in which these crimes were used against women both in the way in which women were targeted and in the effects that these crimes had on women.
In the case at hand, no type of investigation whatsoever has been undertaken that would comply with the international standards with regard to truth, justice, and reparation in order to determine what occurred and who was responsible. There has been no trial or punishment for the perpetrators, or an attempt to locate and exhume the remains of the victims and return them to their relatives. Despite the fact that Francisca and Tolita have denounced the enforced disappearance of Mrs Jaume Vandrel and Mr Alomar Mas before the competent authorities, no action has been taken. Various international organisms, including the former Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of non-recurrence, the Working Group on Enforced of Involuntary Disappearances, the Committee on Enforced Disappearances and the CCPR, have declared the existence of a systematic pattern of enforced disappearance during the Spanish Civil War and the Franco dictatorship and have reminded Spanish authorities that enforced disappearance of persons constitutes a continuous offence and a continuous violation of human rights as long as the fate or whereabouts of the victim have been ascertained. Accordingly, States have ongoing obligations to fulfil. In particular, they remain under an obligation to search for the disappeared person until her or her fate and whereabouts have been determined with certainty, and they maintain the obligation to effectively investigate and prosecute perpetrators and afford the greatest measure of mutual legal assistance in connection with criminal proceedings brought in respect of enforced disappearance to other States.
International jurisprudence (in the case of the CCPR, amongst many others: Sassene v. Algeria, Rosa María Serna et als. v. Colombia) is unanimous in considering that the suffering caused by the enforced disappearance in the relatives, as well as the refusal on the part of State authorities to provide them with information concerning the fate and whereabouts of the disappeared person, or to initiate an effective investigation in order to clarify what occurred, is a form of cruel and inhuman treatment towards the relatives, which may amount to torture. Furthermore, in the case of the family members that are women or girls, the enforced disappearance of their relatives has unique and aggravated effects which relate specifically to gender; these include economic hardship (women and girls are often seen as economic burden on the family, and thus have to accept underpaid work or leave school in order to support the family), and negative effects to their mental (stress, depression) as well as physical health.
An opportunity to end with years of impunity in Spain before the CCPR
The absence of an effective investigation of the case of Francisca and Tolita against Spain is embedded in a general context of impunity in which the Spanish State is explicitly hampering the judicial investigation process of disappearances occurred during the Civil War and the Franco era, as well as the investigations carried out in Argentina.
In the pursuit of finally bringing justice to all the victims of the Civil War and subsequent dictatorship, Argentinean judge Servini de Cubria has been attempting since 2010 to investigate and prosecute these crimes, including gender-based crimes, under the grounds of universal jurisdiction doctrine –which allows the prosecution of gross human rights violations outside the country in which they occurred–. However, the Spanish government has repeatedly failed to comply with its obligation to cooperate with the Argentinean authorities and grant them the right and ability to investigate the said crimes, including by not supplying all evidence at their disposal and by frustrating all attempts to summon witnesses and collect testimonies. Hence, Spain is not only failing to fulfil its positive obligation to provide justice to the victims, but also the obligation to cooperate with other States that are seeking to do so.
Paradoxically, Spain has recently used the same judicial principle (i.e. universal jurisdiction) to grant justice opportunities for victims of other conflicts, more specifically from El Salvador. In fact, this judicial principle has been used extensively in the past, as it once allowed the investigation and prosecution in Spain of crimes committed under other dictatorships, such as Chile’s and Argentina´s.
The matter of enforced disappearance is of topical interest before the CCPR. In January 2020, the CCPR adopted a decision on a communication against Russia that could have significant negative effects on the fight against impunity for these crimes against humanity. The CCPR held that there is no continuous obligation to investigate as, due to the significant passage of time, the victims had to be dead (because they would be more than 100 years old). In the mentioned decision adopted by the CCPR on the communication against Russia, the facts were treated as extrajudicial executions and not as enforced disappearances.
Unlike the CCPR, the Committee against Torture (CAT) has taken a different stance. In particular, in a recent decision against Ireland, this Committee considered itself competent ratione temporis to examine the alleged violations of the obligations of the Convention that occurred even before Ireland signed and ratified the treaty as a continuous breach of the State’s investigative duties. In this sense, it is worrying that UN Treaty Bodies are issuing conflicting decisions. This adds to the already contradictory jurisprudence on this sensitive issue before regional human rights courts, where the European Court of Human Rights has taken an especially restrictive stance, while the Inter-American Court of Human Rights, fully aware of the consequences of the continuous nature of enforced disappearance on the determination of its competence, has adjudicated cases where the enforced disappearance concerned commenced prior to the ratification of the American Convention on Human Rights and the recognition of the competence of the Court by the State concerned (see, amongst others, the case Radilla Pacheco v. Mexico). Notably, the respondent State contended that the victim should be presumed dead, as he would have been more than 95 years old. The Inter-American Court rejected this argument, affirmed its competence and declared the State internationally responsible for several violations. Along the same lines, Principle 1 of the recently adopted Guiding Principles for the Search for Disappeared Persons, affirms that ‘the search should be conducted under the presumption that the disappeared person is alive, regardless of the circumstances of the disappearance, the date on which the disappearance began and when the search is launched’. Principle 7 adds that the search is a continuing obligation.
The fact that the relevant jurisprudence is by no means unanimous makes the communication against Spain pending before the CCPR the perfect opportunity to specify the precise legal consequences of the continuous nature of enforced disappearance and the corresponding States’ obligations. Indeed, the CCPR has the chance to confirm its position on enforced disappearances as a continuous crime and to recognize Spain’s non-compliance with its positive procedural obligations of search, investigation and comprehensive reparation in favour of victims.
The case of Francisca and Tolita against Spain would also allow the CCPR to delve into the importance of applying a gender perspective on these crimes, and thereby acknowledge the concrete impact that enforced disappearances have on women, girls and their female relatives. This situation of impunity for gender crimes against women committed during the Civil War and Franco’s dictatorship can lead to a repetition of human rights violations against women today and thus it is of great importance that these cases are examined. We hope that the case before the CCPR will allow Francisca and Tolita to eventually learn the truth on the fate and whereabouts of their loved ones and the circumstances of their enforced disappearance and to obtain justice and reparation for what happened.