crime and to investigate and punish the perpetrators; (c) The State has acted in
connivance with the perpetrators or with total disregard for the situation of the
potential victims, facilitating the actions of the non-State actors who commit the
act; or (d) The State has created the conditions that allowed their commission. In
such cases, the State has the burden of proving that there was no acquiescence
on its part, and it must demonstrate that it has taken concrete measures and
action to prevent, investigate and punish the crime, and that such measures have
been effective in practice. 23
26.
In addition, the Committee recalls that under international law,
States have strict obligations with regard to due diligence when they have
knowledge of a case of disappearance, or of a real and imminent risk of
disappearance, perpetrated by a non-State actor. These due diligence obligations
are particularly strict where women or girls are involved, owing to the link that
the disappearance may have with, inter alia, acts of sexual violence, femicide and
trafficking in women. 24
27.
In these cases, States have the obligation to search for missing
individuals in accordance with the Guiding principles for the search for disappeared
persons. 25 Even though the State may not immediately have the capacity to search
for and locate the person – for instance, if the non-State actors alleged to be
responsible for the disappearance have control over the territory in which the
person was disappeared – the Committee may request the State party to take all
reasonable measures, within the scope of their powers, that are necessary to do
so, including interim measures, such as the following: registering the case in a
specific database; securing mass graves and preserving evidence; collecting
relatives’ DNA; providing assistance to relatives, including legal and psychological
assistance; and taking steps, to the extent possible, to obtain information from
the non-State actor as to the fate or whereabouts of the disappeared person. 26
VI. CONCLUSION
28.
In its determination of State responsibility for the enforced
disappearance of the victim, the majority opinion should have addressed the
analysis and legal consequences of the authorization, support, or acquiescence of
the State in relation to the acts of non-State actors operating under its jurisdiction.
Beyond the attribution of international responsibility to the State for failing to fulfill
its role as guarantor, the examination of its responsibility for acts of third parties
is framed within the factual context of the litigation in the instant case and the
elements that arise from the case file point to the state's acquiescence to a
declared case of administration of justice and punishments by private parties.
29.
The lack of analysis on state responsibility for acquiescence to
violations of the American Convention by individuals affects the integrity of the
reasoning behind the judgment as to the nature and scope of responsibility for the
events that led to the enforced disappearance of Fredy Núñez Naranjo;
Ibidem, para. 3-7.
Ibidem, para. 22.
25
UN Committee against Forced Disappearance, "Guiding principles for the search for disappeared
persons" CED/C/7, May 8, 2019.
26
UN Committee on Enforced Disappearance, "Statement on non-State actors in the context of the
International Convention for the Protection of all Persons from Enforced Disappearance" CED/C/10, March 13,
2023, para. 24.
23
24
8