Crimesof War

The call came around noon on Sunday. “What do you mean, Tita’s missing? Who was the last person to see her? Who was she with? Did she go to work on Saturday? What exactly did she tell her mother?” Establishing facts is always a good way to hold back one’s feelings in a time of personal crisis.

These were the facts. Tita was Margarita Guzman. Salvadoran citizen. Age: 27. Height: 5’5”. Weight: 140 pounds. Hair: Black. Eyes: Brown. No distinguishing marks. Single mother of two. Employed as a secretary with a social service organization. Last seen wearing blue jeans, a light blue blouse with small flowers, and black pumps, leaving her office at 1:15 P.M. on Saturday morning, May 4, and heading up Avenida Pablo Segundo.

These things happened. They happened to the poor, to the rich, to the faithful, and it had just happened to my friend Tita. She would never see her children grow big, never light up a room with her sense of humor, never hold her boyfriend again, and never walk the streets of San Salvador as a city at peace. She had disappeared… or rather, “been disappeared.”

When used as a transitive verb, to disappear means to arrest someone secretly, to imprison and/or to kill them. It has become such a common occurrence in dirty wars ranging from El Salvador and Argentina to Kurdistan and Kuwait that the word seems almost self-explanatory. In international humanitarian law, however, disappearance is complicated for it involves the commission of several separate war crimes including unlawful confinement, failure to allow due process, and failure to allow communication between the arrested person and the outside world. It often involves torture and cruel and inhuman treatment, and too commonly it involves murder.

The first stage of a disappearance is capture. Humanitarian law states that State authorities may not make arbitrary arrests, and they must have sound legal bases for taking a person into custody and holding them against their will. The second stage is imprisonment. Additional Protocol II to the Geneva Conventions states that once in custody, a person has the right to humane treatment; the right not to be tortured or otherwise cruelly treated; the right to send and receive letters; the right to due process, including being informed of what he or she stands charged with. A person being detained is presumed innocent, must be granted all the necessary rights and means of mounting a defense—presenting evidence, calling witnesses, and the like—and may not be forced into a confession.

The last stage in a disappearance is murder, or what is sometimes euphemistically referred to as extrajudicial execution. Passing and carrying out of a death sentence without the sanction of a regularly constituted court is obviously illegal. The question, though, as in all cases of disappearance and presumed murder is establishing State responsibility. That is both the essence of the task that confronts investigators and the essence of the issue in international law. Not surprisingly, it is the most difficult task as well.

Most disappearances, however, occur in situations other than in international armed conflict—either in internal wars or situations that do not rise to the level of internal conflicts, i.e., disturbances or police actions. Both examples are dealt with in human rights law and the former is addressed in Article 3 common to the four Geneva Conventions. Additionally, the Statute of the International Criminal Court adopted in Rome in 1998 explicitly cites “enforced disappearances . . . by or with the authorization, support or acquiescence of a State or a political organization” as a crime against humanity if committed in a widespread or systematic manner.

Try as we did, we never found Tita, nor did we establish with any certainty who had abducted her. We did learn something of her fate, though. Near the Lempa River, outside San Salvador, an old woman stared at her photo for a long time before shaking her head and telling us she was sorry. We tried not to imagine what had happened, but we could not. We’d seen enough of the bodies dumped, sometimes headless and almost always with the clear marks of torture on them, in conspicuous places where passers-by could not avoid seeing them. Rumors from informants who had seen Tita in the hands of the Policia Nacional came and went. But we never found her body, and eventually all of us stopped asking questions except for her little boys, who kept asking why their mother never came home.