Faculty Bibliography

Individuals seeking accountability for enforced disappearances face significant evidentiary hurdles, due to an inherent information asymmetry between victims and the states that commit or enable abuse. The obstacles are even more profound in contexts of extreme violence and impunity, like Mexico. In these situations, non-state actors such as drug cartels and other organized criminal groups often perpetrate enforced disappearances, acting alone or in collusion with the state. Cognizant of these challenges, in May 2023 the United Nations ("U.N.") Committee on Enforced Disappearances ("CED") promulgated a "Statement on non-State actors in the context of the International Convention for the Protection of All Persons from Enforced Disappearances" (the "Statement"). Taking an ongoing crisis of disappearances in Mexico as its starting point, this Article evaluates the extent to which the newly released Statement will make a meaningful difference for victims and survivors before the CED. 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. 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 informational 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. As the Statement explains, this may happen in situations of internal armed conflict, where non-state actors commit enforced disappearances as crimes against humanity, or where non-state actors exercise effective control or government-like functions over a territory. However, the Article also raises cause for concern. In particular, 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 (the "Convention"). It therefore perpetuates a troubling hierarchy in which only some victims will have access to the Convention's protections and remedies, including reparations. Through a multi-layered analysis, this Article contributes to an active scholarly debate about the modern contours of enforced disappearances under international law, while also seeking to advance the tireless work of survivors pursuing truth and justice.

Critics often contend that human rights litigation is not particularly useful in advancing human rights. Yet such critiques tend to miss the mark both because they demand too much of litigation—which is, of course, but one tool available to the human rights movement—and because they fail to understand the multiple goals, beyond court verdicts, of human rights plaintiffs and litigators.This article excavates those diverse goals, many of which have previously gone unexamined. It draws on insight gained from nearly a decade spent litigating a complex Alien Tort Statute suit that sought to hold corporations accountable for their role supporting and facilitating human rights violations in apartheid South Africa. This article also evaluates both successes and failures in the Apartheid case to explore the extent to which common critiques ring true.It would be foolhardy to claim that lawsuits alone can fundamentally improve respect for and protection of human rights. Still, this article concludes that litigation can be a powerful option for individuals or communities that have survived human rights abuse, particularly when deployed in tandem with other strategies, and that it played an important role for many stakeholders involved in the apartheid suit. In so doing, this article opens up fresh scholarly terrain and shares unique perspectives that may inform the work of other affected communities and human rights practitioners.