In a guest blog for the Bar Council, EHRAC’s Co-Director, Jess Gavron, recalls the Centre’s experiences litigating ED and how they informed the creation of this new online legal resource.
Globally, the crime of enforced disappearance, or ED, is on the rise. The European Human Rights Advocacy Centre (EHRAC) has litigated cases involving ED for twenty years.
On 30 August – the International Day of the Victims of Enforced Disappearance - the independent human rights centre, based in London, launched an expanded version of its Enforced Disappearance Legal Database (EDLD).
In cases of enforced disappearance, the violation of a victim’s rights is both harrowing and legally complex, often involving their unacknowledged abduction, arbitrary detention, torture and murder. But the impact of ED goes wider than the individual victim. The remaining uncertainty over a victim’s fate casts a long shadow over relatives, friends and colleagues, with the families of the disappeared suffering ongoing trauma as well as economic and social marginalisation.
ED has consequences for communities and societies too: states use ED to target groups and create a climate of fear, where few will dare to step out of line; the impunity that ensues undermines the most basic protections we should all expect.
EHRAC was founded in 2003, to litigate serious human rights violations resulting from the second Russian-Chechen war. With our partners, we have litigated over 100 cases involving ED, with judgment after judgment finding Russia responsible.
Two decades on, ED remains an issue for the Russian Federation. What was once a tool of war, perpetrated by state security forces, is now being used by local law enforcement, to ‘cleanse’ minority groups and dissenters. Recently, we've seen the disappearance and torture of members of the LGBTQI+ community in Chechnya and, since 2014, Russia has used ED in occupied areas of Ukraine to target dissenters and members of marginalised groups, including Crimean Tatars.
Over the past twenty years, our friends and colleagues have been directly affected as a result of their work on ED. EHRAC co-litigated many of the cases resulting from the Russian-Chechen wars with the Moscow-based Memorial Human Rights Centre.
In 2007, Oleg Orlov, Memorial’s Chair, was abducted in Ingushetia. Orlov’s is an unusual case, as he survived – and now, sixteen years later, he is the subject of a much-publicised show trial for the ‘discreditation of Russian Armed Forces’.
In 2009, Orlov’s colleague at Memorial, Natalia Estemirova, was kidnapped on her way to work. Her body was found later that day. In 2021, the European Court of Human Rights found that Russia had failed to effectively investigate Natalia’s abduction and killing, but it stopped short of finding Russia directly responsible for her death. In many ways, this judgment demonstrated one of the many challenges faced by those litigating ED – key evidence remains in the hands of the state and is not disclosed to the Court, often on spurious grounds of national security.
The ECtHR has, however, acknowledged in other judgments the “life-threatening context to unacknowledged detention in this region”. In 2009, Ayma Makayeva heard that her son, Apti Zaynalov – a victim of enforced disappearance - had been spotted in a hospital ward in Chechnya. She rushed to the hospital, where Apti was receiving treatment for torture, only to see him being removed by men in camouflage uniforms. Apti was put in a car and driven away. He has not been seen since.
In 2014, the ECtHR determined that Zaynalov was dead, and found Russia responsible for three breaches of the right to life, but cases like this illustrate one of EHRAC’s main learnings from the past twenty years. With ED, in most instances, the families of the disappeared are denied closure. The ongoing failure of the state to acknowledge its involvement, and to confirm the victim’s fate, leaves the families in limbo.
As lawyers in these cases, we’d get a judgment, we’d secure compensation, but for the relatives and friends the trauma would never end. This lack of meaningful progress has meant that we’ve had to go back to the families and ask them again what they want to do. With their support and consent, we have sent many of our unimplemented cases from the ECtHR to the UN Working Group on Enforced and Involuntary Disappearances, for consideration by a further international body. For the applicants, the main priority at this stage has been to pursue humanitarian resolution: to know the fate and whereabouts of their loved ones; to have closure.
Litigating ED presents huge challenges, and we have frequently found ourselves looking to other jurisdictions for novel arguments and approaches. With this experience, we wanted to create a resource that made it easier for others to do the same.
The Enforced Disappearance Legal Database, or EDLD, is that resource. The result of a two-year research project, involving a range of partners and international experts, the first resource of its kind for lawyers litigating ED now includes almost 200 case summaries from around the world, as well as standards set in internal humanitarian law, international criminal law, and the various international and regional human rights mechanisms.
The horrific crime of enforced disappearance continues to claim victims, to traumatise families and to tear communities apart. The ongoing impunity of those responsible means that states like Russia continue to perpetrate ED in new contexts, including currently in Ukraine. Ensuring state accountability is therefore crucial. We hope the new, expanded Enforced Disappearance Legal Database can play a small part in helping all those seeking justice and accountability for the families of the disappeared.
Jessica Gavron is a UK barrister and Co-Director of EHRAC. She leads EHRAC’s strategic litigation team and has extensive experience advising on, litigating and teaching international human rights law, international humanitarian law and criminal law.