On August 1, 2017, Santiago Maldonado, an activist, was disappeared from the banks of the Chabut River in Argentina. Two months later, on October 17 the Argentine government announced that Santiago’s body was discovered in that same river. His forced disappearance reignites the Argentine people’s common memory of living through the “Dirty War,” in which some 30,000 people were forcibly disappeared. Argentina’s denial of having had custody of Santiago, and reluctance in conducting an independent investigation are violations of international human rights law under the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), the Inter-American Convention on Forced Disappearance of Persons, and the American Convention on Human Rights.
During the “Dirty War,” the Argentine regime disappeared thousands of people. This sparked marches through the streets demanding their safe return. In 1984, the National Commission on the Disappearance of Persons (Conadep) issued a report, Nunca Más, that provided testimony of grave violations of human rights in the hopes of preventing it from happening ever again. Unfortunately, Santiago Maldonado’s story is eerily similar to those presented in the report. Santiago was last seen at an occupation protest against Benetton’s use of ancestral Mapuche lands. According to witnesses, during the police breakup of the occupation, Santiago was chased into the Chabut river where he surrendered to the police. The police then denied ever having Santiago in their custody. The Nunca Más report also shows that when bodies were found, they were often found in River Plate with the official cause of death being asphyxia by drowning. Once Santiago’s body was identified, the preliminary autopsy determined that the cause of death was drowning.
Under international human rights law, Argentina violated Santiago’s right to life, right to be free from arbitrary detainment, right to be free from torture and other ill-treatment, and the right to due process. Under the ICPPED, Article 2, enforced disappearance is defined as:
the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiesce of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
Because Article 29 of the American Convention requires that substantive rights be interpreted in light of the rights’ most protective standard, the right to life should be read in light of the definition of enforced disappearances. Argentina ratified the American Convention in 1984, the Inter-American Convention on Forced Disappearance in 1995, and the ICPPED in 2007. As such, Argentina is bound to protect and ensure the right to life, the right to be free from arbitrary detention, the right to be free from forced disappearance, and the right to due process to their most protective standard under those human rights treaties.
Furthermore, in Abella v. Argentina, paragraph 196, the Inter-American Court on Human Rights, reaffirmed that the burden is on the State to show it is not responsible if an individual was last seen in the State’s custody and that individual’s body is found. Here, Argentina’s mere denial that Santiago was in police custody does not meet that burden.
Argentina violated Santiago’s right to life and right to be free of enforced disappearance. Argentina is also failing to fulfill its obligations under the American Convention Article 1, to ensure the right to life and right to be free from enforced disappearance, through investigation and accountability of direct responsibility. Under Article 24 of ICPPED, the victim of an enforced disappearance is defined as both the individual disappeared and “any individual who has suffered harm as a direct result of an enforced disappearance.” Additionally, under Article 24, “each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person.” This creates an obligation for the State to investigate the circumstances and to take all steps to ensure the fulfillment of this right.
Although Santiago is already dead, Argentina can and should fulfill its remaining international legal duties. Argentina should conduct the necessary investigations to hold the perpetrators criminally responsible as stated in Article 6 of the ICPPED. By not fulfilling this duty and by failing to give a public and transparent account of the truth, Argentina could be losing any human rights credibility that it gained since the end of the Dirty War. The impunity of those who forcibly disappear individuals and those who cover up disappearances is a black mark that will show the world that Argentina has not truly learned what Nunca más means.