https://academic.oup.com/hrlr/article/21/2/329/6129925

State Responsibility for a Failure to Prevent Violations of the Right to Life by Organised Criminal Groups: Disappearances in Mexico Open Access

Lene Guercke

Author Notes

Human Rights Law Review, Volume 21, Issue 2, June 2021, Pages 329–357, https://doi.org/10.1093/hrlr/ngaa061

Abstract

States have obligations to protect the right to life, which include obligations to prevent and respond to violations of this right by non-State actors. Yet, there is no clear approach to determining State responsibility for failing to comply with these obligations. One actor that is notably absent from scholarship on State responsibility and non-State actors is organised criminal groups, despite the fact that their activities can infringe the right to life in many ways. This article critically examines current approaches by the European and Inter-American Human Rights Courts for determining State responsibility for a failure to prevent, in light of the current crisis of disappearances in Mexico. It is argued that in cases where the non-State actors are organised criminal groups, their particular nature and their relationship to the State should be taken into account as criteria for assessing the State’s knowledge of risk and the reasonability of measures taken.

obligation to prevent, non-State actors, organised crime, disappearances, state responsibility, right to life

Issue Section:

Article

1. INTRODUCTION

The purpose of International Human Rights Law (IHRL) is to protect the inherent dignity of all human beings. It aims to achieve this by establishing obligations for States to safeguard human rights, as well as mechanisms to hold the latter accountable if they fail to comply and to ensure redress for victims.¹ This State-based protective framework faces challenges where human rights are violated by actors who are not States,² because under positive international law, only States can legally commit human rights violations³ and thus be held accountable in international or regional human rights fora.⁴ While there is increasing discussion in scholarship on the question of whether different types of—increasingly powerful—non-State actors themselves may have human rights obligations and how could it be held accountable,⁵ victims who seek to obtain redress for violations through an international or regional human rights mechanism can still only present claims against States, both in legal fora but also beyond the strictly legal sphere.⁶ Therefore, the extent of a State’s responsibility in relation to acts committed by non-State actors remains important.

One non-State actor that is notably absent from the general works on the topic of non-State actors and human rights, is organised criminal groups.⁷ This is despite the fact that organised crime is mentioned as a perpetrator that can infringe on human rights in human rights textbooks⁸ and that certain ‘organised crimes’, such as human trafficking, are clearly viewed as a human rights issue.⁹ Beyond this, in certain countries, organised criminal groups or gangs have become extremely violent actors that engage in war-like battles against each other and against the State, for example in Mexico or the northern countries of Central America, with levels of atrocities, including executions and disappearances, that resemble an ‘armed conflict’.¹⁰ In these contexts, the existence of massive de facto violations of the right to life raise questions about the failure of States to prevent such violations from occurring at such a scale and their ensuing responsibility, especially in view of the fundamental importance of protecting the right to life as the ‘prerequisite for the enjoyment of all other human rights’.¹¹ Existing scholarship on the topic of organised crime and human rights is mostly concerned with either the obligations of States to protect individuals from human trafficking¹² or smuggling,¹³ as well as with the question whether organised crimes could be considered as a particular type of human rights violation, such as torture.¹⁴ At the same time, in recent years, the issue of organised crime as such, and the variety of legal questions related to it, have received more attention from scholars in international law more generally.¹⁵ Discussions of the responsibility of States in relation to acts that infringe on the right to life committed by organised criminal groups, however, remain limited to human trafficking and smuggling.¹⁶ This is also reflected in existing case law, where the issue of organised crime has not received much attention. Moreover, the case law dealing with violations of the right to life in relation to organised crime-related activities is very limited.¹⁷

This article aims to raise the issue of violations of the right to life committed by organised criminal groups in situations of widespread criminal violence, and to examine the extent to which a State can be held responsible for its failure to prevent such acts. To accomplish this objective, the article reviews two existing approaches for determining State responsibility on the basis of a failure to prevent, which are most clearly discernible in the jurisprudence of the European and Inter-American Human Rights Courts. It then uses the example of the current crisis of disappearances in Mexico with a view to assessing the suitability of these approaches in contexts that involve organised criminal groups. While disappearances entail the violation of multiple rights,¹⁸ they often involve a violation of the right to life and their complex nature is particularly suitable for illustrating the nuances of the approaches to determining State responsibility for a failure to prevent. The situation in Mexico highlights the need to consider the State’s actions and omissions which enabled the commission of such crimes in the first place, and the extent to which these can give rise to its international responsibility beyond the issue of human trafficking or smuggling. This is because if international legal protection is to function effectively, there is a need for clarity of State obligations as well as the consequences of a failure to comply with them. Only then can victims appeal to international standards or mechanisms in order to hold the State accountable for its failure to comply with its human rights obligations.¹⁹

First, I examine the positive obligations of States to protect the right to life and prevent its violation by non-State actors at a general level, which has been clearly articulated at both the international and regional levels. Second, on the basis of an analysis of case law from the European Court of Human Rights (ECtHR/European Court) and the Inter-American Court of Human Rights (IACtHR/Inter-American Court), I illustrate two different approaches which these Courts have taken to determine the responsibility of States for a failure to prevent violations to the right to life by non-State actors (the victim-based and the source-based approaches). The analysis focuses on the jurisprudence of these regional human rights courts because they have dealt with the question of State responsibility for acts committed by non-State actors in much more depth than the United Nations’ treaty bodies.²⁰ Moreover, where the latter have addressed State failure to protect, they have not developed an explicit set of criteria in their reasoning. Third, I introduce the topic of organised criminal groups as perpetrators of violations of the right to life at the hand of the example of disappearances in Mexico and outline the legal questions raised by this situation in relation to the question of State responsibility. In the final section, I show that the victim-based approach does not lead to satisfactory results in such a case and argue in favour of a source-based approach for analysing the State’s responsibility for failing to prevent risks to life emanating from organised criminal groups, which takes into account the relationship between State and crime, as well as the specialised international legal framework to counter organised crime and corruption. I conclude by summarising the main points of the article and highlighting the need for further research, especially in relation to questions of causation in contexts of State failure to prevent.

2. THE OBLIGATION TO PREVENT IN IHRL

A. The Obligation to Protect Human Rights

The obligations of States under IHRL encompass three distinct types of obligations: to respect, to protect and to fulfil each human right. The obligation to respect refers to the direct abstention of the State from violating human rights. The obligation to protect is of particular relevance to violations involving non-State actors, as it requires States to protect the human rights of individuals within their jurisdiction from acts that (could) infringe the enjoyment of these rights, even if committed by non-State actors. Finally, the obligation to fulfil refers to the need for States to take positive measures toward the enjoyments of rights, which is especially prominent in the realm of economic, social and cultural rights, such as the right to health or education.²¹

Although this typology was developed in the context of economic, social and cultural rights, it can equally be applied to obligations in the realm of civil and political rights. The obligation to protect human rights has been interpreted as being implicit in obligations to ‘ensure’²² and ‘secure’²³ the rights established in international and regional human rights instruments. It requires States to take positive measures to prevent the violations of human rights by both State and private actors, as well as to investigate them, prosecute those responsible and provide redress to victims.²⁴ Where a State fails to act diligently to protect individuals from violations committed by private actors or to respond to them appropriately, it can be held responsible for the violation of the right in question. The IACtHR articulated this in the seminal case of Velásquez Rodriguez v Honduras:

An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.²⁵

B. The Obligation to Prevent

While the obligations that derive from the obligation to protect rights apply equally to acts by State and non-State actors,²⁶ their exact scope differs. This is particularly clear in relation to the preventive component of the obligation to protect. The duty to prevent human rights violations by private actors is a non-absolute obligation of means, which means that failure to prevent a private act of violence does not automatically lead to a violation of the right in question by the State and thus the State’s international responsibility.²⁷ As an obligation of due diligence, the obligation to prevent requires States to take ‘reasonable measures’ to protect their population from harm.²⁸ It is more difficult to define its precise content, given that what constitutes reasonable preventive measures depends both on the context and on the right in question.²⁹ Despite this, there are some general elements in relation to the prevention of human rights violations that can be derived from international instruments that deal directly with the prevention of certain rights violations,³⁰ as well as interpretations by treaty bodies and the ECtHR and IACtHR. Broadly speaking, the obligation to prevent includes both general and specific measures.³¹

(i) General prevention obligations

At a general level, the obligation to prevent requires of States to ‘ensure the creation of the necessary conditions to prevent violations [of the right to life]’³² and adopt.

… all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages.³³

Regarding the rights to life and physical integrity, this means that States must adopt laws that criminalise conduct by individuals amounting to human rights violations, such as murder, torture, disappearances, slave labour and human trafficking,³⁴ as well as adopt policies and programmes aimed at reducing (specific types of) violence or providing support to victims, especially with regard to violence against particular groups, such as women³⁵ or children.³⁶ Such policies can include education and awareness-raising measures.

(ii) Specific prevention obligations

In addition to such general measures, a State may also be obliged to take ‘preventive operational measures to protect an individual whose life is at risk form the criminal acts of another individual’.³⁷ Such specific preventive measures are conditioned on the awareness of the State of the risk from which they are to protect the individual as well as the State’s capacity to take preventive measures (see below at Section 3.A).³⁸ Due to their context-dependent nature, specific preventive measures can take many different forms, depending on the nature and source of the risk, as well as on the potential victim. In relation to the right to life, for example, the Human Rights Committee has established that where persons in a situation of vulnerability are at risk ‘because of specific threats or pre-existing patterns of violence’, specific preventive measures can include ‘the assignment of around-the-clock police protection, the issuance of protection and restraining orders against potential aggressors and, in exceptional cases, only with the free and informed consent of the threatened individual, protective custody’.³⁹

Conversely, in cases where the State is in a position to directly influence the risk from materialising, specific preventive measures would be determined in relation to the source of the risk. For example, in a number of cases before the ECtHR that concerned prisoners who were released in the framework of social reintegration programmes,⁴⁰ the European Court assessed whether the respective States had failed in their obligation to protect society at large from ‘dangerous’ individuals by ‘doing all that could reasonably be expected to avoid a real and immediate risk to life’.⁴¹ For this, the Court examined the States’ reintegration programmes generally,⁴² as well as the way in which the authorities had assessed the risk posed by the individuals in the cases at hand.⁴³ Furthermore, in cases dealing with risks to life emanating from environmental disasters or accidents, one of the preventive measures considered by the European Court was whether authorities had issued warnings to residents so as for the latter to react and take measures to protect themselves (or their property).⁴⁴

3. RESPONSIBILITY OF STATES FOR FAILING TO PREVENT VIOLATIONS OF THE RIGHTS TO LIFE AT THE HANDS OF NON-STATE ACTORS

The determination of State responsibility in International Law is composed of two steps: first, the act has to be attributable to the State. Second, the attributable act needs to constitute a wrongful act in accordance with international legal standards.⁴⁵ Thus, when determining the State’s responsibility for violations committed by private actors, it is firstly necessary to recognise that a State can only be held internationally responsible for acts which are directly attributable to it. Such acts encompass all acts of State organs, including public officials,⁴⁶ who act in their official capacity, even if these acts are contrary to instructions or lie beyond their capacity (ultra vires).⁴⁷ The acts of non-State actors can be directly attributed to a State where they were ‘directed or controlled’ by a State,⁴⁸ if the non-State actor was exercising governmental functions,⁴⁹ if an insurrectional movement later became the government of a State,⁵⁰ as well as in situations where the State ‘acknowledged and adopted’ the conduct ‘as its own’.⁵¹ Moreover, criteria for attribution can also be defined in certain instruments that serve as a lex specialis to the general rules of attribution established in the law on State responsibility.⁵² Certain human rights instruments are an example of this, such as the Convention against Torture or the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), which define the crimes of torture and enforced disappearance, respectively, as those committed ‘by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’,⁵³ and ‘by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State’.⁵⁴

Nonetheless, the existence of the obligation to protect, and specifically the obligation to prevent, implies that even if the acts themselves cannot be directly attributed to the State, for example because it could not be shown that the perpetrators acted with the support, authorisation or acquiescence of State officials in cases of disappearances, the responsibility of the State can be engaged on the basis of its failure to protect the right, or rights, in question.⁵⁵ Failure to protect, either by failing to prevent a violation or by failing to respond to it appropriately, is always attributable to the State because it necessarily engages actions and omissions by authorities. However, due to the non-absolute nature of the obligation to prevent, human rights bodies have developed means of assessing whether a State’s preventive obligations were sufficiently concrete in a particular case so as to determine the State’s failure to protect on that basis. These approaches have most explicitly been articulated in the jurisprudence of the ECtHR and IACtHR, on which the following sections focus.⁵⁶

A. Current Approaches to Determining State Responsibility for a Failure to Prevent

As the obligation to prevent is an obligation of means whose content cannot be fully defined in the abstract and depends both on the context and the specific situation of a case, whether the State’s failure to protect one individual from another leads to its international responsibility is assessed on a case-by-case basis.⁵⁷ This is because it is recognised that States must make operational and budgetary choices and can therefore not be expected to prevent every violation of rights that occurs between private individuals, which would be an impossible task.⁵⁸ Therefore, the determination of State responsibility for a failure to prevent requires an assessment of whether it had an obligation to take specific preventive measures in the first place and, if so, whether it failed to adopt them in a diligent manner.⁵⁹ In order to determine whether a State had such an obligation, the ECtHR and IACtHR apply a test made up of four criteria, which were first articulated by the ECtHR in the case of Osman v United Kingdom:

‘…’ it must be established ‘…’ that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.⁶⁰

The criteria thus are:

• (a) awareness (or knowledge);⁶¹
• (b) of a real and immediate risk of harm;
• (c) to a specific individual or group of individuals and
• (d) the reasonable possibility of preventing the act.

However, the way in which these criteria have been applied and evaluated is not always clear and coherent in the jurisprudence of the two Courts, leading to some confusion with regard to their exact content.⁶² Moreover, the lack of explicit or critical engagement with the criteria by the Courts also leaves doubts with regard to the appropriateness of their application to cases of a different nature than the Osman case. This case concerned a schoolteacher who had developed an obsession for two students, one of whom was the applicant in the case. Approximately, a year after authorities had been informed about the obsession, and following a number of different incidents, the teacher ultimately killed the applicant’s father and seriously wounded the applicant himself.⁶³ Yet, whether a ‘test’ developed in the context of such a specific and isolated case is equally suitable for situations that involve risks to a large segment of society, or even society as a whole, and that are more general in nature, can be questioned.⁶⁴ To some extent, this has been recognised by the ECtHR and IACtHR, who have adapted the application of the criteria, albeit not always explicitly or clearly. One of these adaptations is the importance given to the individualised nature of the risk (criterion c) for the purpose of establishing more specific prevention obligations, which is the extent to which a State was aware of a risk to a particular victim, or victims. Yet, despite the lack of clarity by the Courts, two main approaches can be distinguished on the basis of the object of the State’s knowledge of risk as either victim-based or source-based.

(i) The victim-based approach

The victim-based approach remains closer to the criteria established in the Osman case, in that it places emphasis on the State’s knowledge of risk to one or more identifiable individuals. Such knowledge can usually be established if the victim had reported specific threats to the authorities, belonged to a particular group, or in cases involving disappearances, the disappearance had been reported to authorities.

For example, in the case of Osmanoğlu v Turkey, the European Court considered that the victim disappeared in ‘life-threatening circumstances’ had received threats prior to his disappearance and that the authorities were promptly notified.⁶⁵ Thus, ‘following his disappearance, the life of the applicant’s son was at more real and immediate risk than that of other persons at that time’.⁶⁶ Importantly, the Court clarified that it assessed whether the State took specific measures to protect the victim’s life, particularly as regards the conduct of an effective investigation, once the disappearance had occurred, rather than to prevent the disappearance itself.⁶⁷ Similarly, in the case of Olewnik-Cieplińska and Olewnik v Poland, the ECtHR held that kidnappings for ransom in Poland entailed a risk to the life and health of the victim, which meant that once the authorities were made aware of the victim’s kidnapping, they ‘knew or should have known’ that there existed a real and immediate risk to his life and health, which meant that they had an obligation ‘to do all that could reasonably be expected of them in order to find Mr Olewnik as swiftly as possible and identify the perpetrators’.⁶⁸

In the case of Medova v Russia, Mr Medov and another person were abducted by armed men claiming to be members of the Russian Federal Security Service, who initially failed to provide identification when crossing a checkpoint with their captives. The group was detained and brought to the local Department of the Interior, where the captors presented falsified identity documents and arrest warrants for the victims. The authorities decided to release the men, which led to the disappearance of Mr Medov and the other captive. The ECtHR found that the State had an obligation to take specific positive measures to prevent a potential violation of the victims’ right to life, due to the fact that the victims and their captors had been under the control of the authorities and the captors had behaved suspiciously by initially refusing to provide their identity documents.⁶⁹ The ECtHR reasoned that by failing to thoroughly verify the identity of the captors and to properly record the detention, the authorities had failed in their obligation to prevent the offences that were subsequently committed and thereby violated the victim’s right to life.⁷⁰

In the Inter-American system, the case of González et al. v Mexico (‘Cotton Field’), before the Inter-American Court of Human Rights is particularly illustrative of the victim-based approach. This case dealt with the disappearance and subsequent brutal murder of three women in Ciudad Juárez, Mexico, in a context of widespread gender-based violence. As the Court found no indication for direct involvement of State forces in the disappearance or murder of the women, which would have meant a failure of the obligation to respect the victims’ rights, it determined the responsibility of the State in relation to its positive obligation to guarantee the rights to life, humane treatment and personal liberty under the American Convention of Human Rights.⁷¹

The Inter-American Court distinguished two moments for the purpose of determining the scope of the State’s obligation to prevent in this context, in a similar manner to the ECtHR’s approach in Osmanoğlu v Turkey. The first moment referred to the situation before the initial disappearance of the three women, whereas the second moment encompassed the time from the moment of the disappearance onwards.⁷² The IACtHR distinguished between the State’s general awareness of the ‘situation of risk for women in Ciudad Juárez’ during the first moment and the existence of its specific awareness of ‘a real and imminent danger for the victims in this case’,⁷³ which the State only acquired once the victims had been reported as missing (second moment). Based on its failure to act during the second moment, the IACtHR held that Mexico was responsible for violating the rights to life, humane treatment and personal liberty of the three victims in relation to its obligation to guarantee under Article 1 (1) of the American Convention for not exercising ‘the required due diligence to prevent the death and abuse suffered by the victims adequately and [not acting] as could reasonably be expected, in accordance with the circumstances of the case, to end their deprivation of liberty’.⁷⁴ However, this responsibility was limited to the failure to act diligently once the disappearances had been reported to the authorities, when, ‘given the context of the case, the State was aware that there was a real and imminent risk that the victims would be sexually abused, subjected to ill-treatment and killed’.⁷⁵

(ii) The source-based approach

While the victim-based test has been applied in numerous subsequent cases,⁷⁶ there are also cases in which the ECtHR, and the IACtHR to a lesser extent, used a different threshold to determine whether a State had specific prevention obligations. In these cases, the deciding factor was the State’s knowledge about the source of the risk, as well as the possibility of mediating such risk by taking preventive measures. Moreover, the State’s own contribution to the risk was explicitly considered as an aggravating factor by the IACtHR.⁷⁷

The ECtHR has departed from the criteria established in Osman in a number of cases that involve different types of risks of a more general nature. Two examples are cases involving prisoners who were released on the one hand, and environmental disasters or accidents on the other. In the cases of Mastromatteo v Italy, Maiorano and Others v Italy and Choreftakis and Choreftaki v Greece, the ECtHR considered the State’s obligation to protect society at large from potential risks posed by convicted criminals, who were granted prison leave as part of a reintegration programme. In all cases, prisoners who were granted leave engaged in criminal activities outside of prison and killed the applicants’ relatives. The ECtHR explicitly distinguished the cases from the Osman v United Kingdom scenario in that they did not concern the State’s failure to provide ‘personal protection’ to the victims, but rather ‘the obligation to afford general protection to society’ from potentially dangerous individuals.⁷⁸ For the Court, the imprisonment of criminals constitutes a means of protecting society,⁷⁹ wherefore any social reintegration system had to have sufficient safeguards for the protection of society in place. In the case of Mastromatteo v Italy, the ECtHR found that the State had not failed in its obligation to take specific preventive measures because there were no indications ‘to alert [the authorities] to the need to take additional measures to ensure that, once released, the two did not represent a danger to society’.⁸⁰ The Court reached a similar conclusion in Choreftakis and Choreftaki v Greece.⁸¹ In the case of Maiorano and Others v Italy, on the other hand, the ECtHR held Italy responsible for its failure to prevent the murder of two women by a convicted criminal who had been granted leave from prison. Although the Court found that authorities did not and could not have known of a specific risk to the victims,⁸² they were aware of the general risk which the perpetrator posed to society at large, based on his criminal record and on his non-exemplary conduct during his time in prison, which should have been taken as warning signals.⁸³

A different example of the source-based approach is the case of Öneryildiz v Turkey,⁸⁴ where the ECtHR had to determine the State’s responsibility for its failure to protect the right to life of slumdwellers who lived close to a rubbish tip in the outskirts of Istanbul. A report had signalled that the site did not conform with safety and environmental regulations and posed a threat to residents because there was no way to prevent an explosion of the gases released by rotting trash.⁸⁵ An explosion of this sort occurred, killing nine of the applicant’s relatives. The European Court found that Turkey was responsible for a violation of the right to life, based on its failure to take preventive measures upon its awareness of the risk to life of slum residents. The State failed to prevent in two ways: first, by not taking effective measures to reduce the risk of an explosion directly, and second, by not warning the slumdwellers of the risk and thereby enabling them to take measures and move away from the location.⁸⁶ Therefore, the Court found that ‘the factors referred to in the various expert reports “…” suffice to establish a causal link between, on the one hand, those negligent omissions [by the authorities] and, on the other, the occurrence of the accident on 28 April 1993 and the ensuing loss of lives’.⁸⁷ Thus, in all these cases, the States’ awareness of a potential risk, as well as their ability to stop the risk from materialising, was sufficient to trigger more specific preventive obligations, even though the States were not and could not have been aware of a risk to any particular victims.

While the IACtHR’s case law on State failure to prevent is more limited and the Court has not taken a similarly explicit departure from the Osman criteria as the ECtHR, in the case of the Pueblo Bello Massacre v Colombia (‘Pueblo Bello’), it also took an approach that focused on the source of the risk rather than the specific victims. This case dealt with an attack by a paramilitary group on the village of Pueblo Bello in Colombia and the subsequent disappearance of 43 persons, 37 of whom remained disappeared at the time of the judgement.⁸⁸ While in previous cases that involved paramilitary groups, the IACtHR, had attributed their acts directly to the Colombian State based on links between its forces and the paramilitary groups,⁸⁹ in Pueblo Bello, the Court did not attribute the acts directly to the Colombian State. Rather, it focused on the latter’s responsibility for its failure to prevent the attack, as well as its subsequent failure to investigate and punish those responsible.⁹⁰ The Court found that Colombia was responsible for its failure to prevent even though there had been no specific warnings or reports of threats by the residents of Pueblo Bello.⁹¹ Rather, the Court established the State’s knowledge of the ‘possibility of specific danger’ to the population on the basis of its general awareness of the danger posed by paramilitary groups. This general awareness was established on the basis of legislative measures which the State itself had taken to criminalise these groups, as well as measures taken to regain control of the area in which Pueblo Bello was located,⁹² which in the Court’s view placed the State in a ‘special position of guarantor’.⁹³

In addition, the IACtHR considered that the State’s role in the creation of paramilitary groups, through which it ‘objectively created a dangerous situation for its inhabitants’ and thus directly contributed to the risk, ‘accentuate[d] the State’s special obligations of prevention and protection in zones where the paramilitary groups were present’.⁹⁴ The fact that the State failed to offer ‘effective protection to the civilian population in a dangerous situation that was reasonable foreseeable by the members of the Armed Forces or security forces’ was considered a key causal factor that allowed the massacre to occur.⁹⁵ As a result, Colombia was held responsible for the acts committed by paramilitary groups on the basis of its failure to prevent and protect.⁹⁶ While the IACtHR does not specify the extent to which the State’s role in the creation of risk was decisive for finding the State responsible for a failure to prevent the attack on the village of Pueblo Bello, the establishment of the State’s awareness of the risk and the possibility of taking measures to prevent it from materialising, appears to be a separate matter and thus resembles the ECtHR’s reasoning in the cases above.

4. VIOLENCE PERPETRATED BY ORGANISED CRIMINAL GROUPS: DISAPPEARANCES IN MEXICO

A. The Context of Disappearances in Mexico

In late 2006, when former Mexican president Felipe Calderón took office, he declared a ‘war’ on drug trafficking organisations and deployed the military to support or replace police forces to fight crime. Since then, violence has risen sharply in the context of this so-called ‘war on drugs’ and today Mexico faces a human rights and humanitarian ‘crisis’.⁹⁷ While the estimated numbers of victims—over 300,000 displaced,⁹⁸ 270,000 violent deaths⁹⁹ and 70,000 disappeared¹⁰⁰—resemble those of a conflict, there is no official armed conflict in the country and the legal nature of the violence is disputed.¹⁰¹ The dynamics and causes of violence are complex and perpetrators of atrocities, such as disappearances, include both State forces and members of organised criminal groups, who sometimes act in collusion. The lack of proper investigations into these cases, near absolute impunity,¹⁰² as well as serious shortcomings in official statistics, makes it difficult to assert the exact causes or main perpetrators of these disappearances. Available information indicates that neither the victims nor the perpetrators are homogeneous groups.¹⁰³ While the majority of reported victims are male,¹⁰⁴ women are also victims of disappearances, which can, among others, result from trafficking and gender-based violence.¹⁰⁵ Furthermore, victims include social leaders and activists,¹⁰⁶ as well as victims of ‘regular’ kidnappings who do not return after the payment of ransom.¹⁰⁷ Moreover, contrary to the ‘traditional’ image of enforced disappearances as a form of ‘State terrorism’ committed against private individuals,¹⁰⁸ the disappeared in Mexico include police officers and members of the armed forces.¹⁰⁹ Finally, the number of 70,000 disappeared does not adequately reflect the large number of migrants who disappear on their journey through Mexico, either as victims of human trafficking or because of the widespread practice of kidnapping of migrants both at the hands of organised crime alone and in collusion with immigration officials, as well as due to immigration detention practices.¹¹⁰ The diversity of victims indicates that there are a variety of motives for their disappearance, yet the common factor among virtually all cases is persistent impunity.

The official report of over 3900 clandestine mass graves across the country,¹¹¹ as well as the existence of at least 30,000 unidentified bodies in the country’s morgues,¹¹² suggest that a large number of those disappeared may have been killed and that the continuation of their disappearance is the result of a failure by the authorities to identify bodies or, as in some cases, the disposal of unidentified bodies.¹¹³ On the other hand, recent reports have also provided evidence of forced recruitment by criminal organisations,¹¹⁴ which indicates that a part of the disappeared is potentially still alive.¹¹⁵ While the government insists that the vast majority of disappearances are committed by organised criminal groups,¹¹⁶ human rights NGOs have documented hundreds of cases where State forces, both police and military, were involved.¹¹⁷ At the same time, there are instances where State forces clearly work for or with criminal organisations or manifestly fail to intervene in the commission of atrocious acts. Such collusion indicates that it is often not possible to distinguish between ‘crime’ and ‘State’ in the Mexican context.¹¹⁸

Two examples illustrate this. The first is the case of 43 students from a rural teacher’s college in Ayotzinapa (Guerrero state), who disappeared in 2014. Their disappearance, which caused national and international outrage, followed an attack on the students by municipal police forces. The official version of the previous Mexican Administration of President Peña Nieto was that the students were detained by municipal police forces and handed over to a criminal gang, who then killed them.¹¹⁹ This version, however, was discredited by a group of international experts, who proposed the hypothesis that one of the buses commandeered by the students may have carried either drugs or money destined for the United States, which would make the disappearance part of an effort to ‘protect’ this shipment.¹²⁰ Either version clearly shows the links between State forces and criminal groups.

The second case is a three-day attack in 2011 on the towns of Allende and Piedras Negras in the northern state of Coahuila by the criminal organisation ‘the Zetas’. This attack appears to have been a ‘vengeance’ against three presumed ‘traitors’ who passed information on to the United States Drug Enforcement Agency. Estimates of victims, which include persons killed and disappeared, go as high as 300. Authorities, including police and firefighters, were instructed not to intervene during the attack; no investigations were carried out and relatives who tried to denounce the crimes received threats.¹²¹

(i) National legislation on disappearances

In late 2017, after years of lobbying by civil society organisations and relatives of disappeared persons who formed the national Movimiento por Nuestros Desaparecidos en México,¹²² the Mexican government of former president Enrique Peña Nieto adopted a federal law to address the issue of disappearances in the country. The General Law on Enforced Disappearances, Disappearances Committed by Private Individuals and the National Search System¹²³ creates two crimes, as a way of dealing with the uncertainty surrounding the identity of the perpetrators: ‘enforced disappearance’ and ‘disappearance committed by private individuals’.¹²⁴ This ‘solution’ to the complexity of perpetrators at the national level reflects the international legal framework on enforced disappearances (see below at Section 4.B.i).

B. Legal Questions Highlighted by the Mexican Context

Both the international legal framework and domestic Mexican legislation presume that it is possible to distinguish between enforced and ‘private’ disappearances. However, as the examples of Ayotzinapa and Allende indicate, the distinction is often difficult to maintain, especially in a context where corruption and impunity play an important role in the perpetuation of violence.¹²⁵ Additionally, despite the scarcity of information, it is possible to affirm that violence in Mexico is the result of violent confrontations between State forces and criminal organisations, as well as the latter’s fragmentation resulting from anti-drug strategies that led to greater violence among and within these groups.¹²⁶ This suggests that the State’s policies contributed to the increase in violence and atrocities, committed both by State forces and by organised crime.¹²⁷ Moreover, even where ‘independent’ criminal organisations are responsible for disappearances, their large number¹²⁸ and almost total impunity indicate a clear failure by the State to ensure the human rights of its population. This in turn indicates the importance of critically examining the extent of its responsibility, either on the basis of direct attribution or as regards the protection of the population, while also highlighting the difficulty of distinguishing between a failure to prevent and acquiescence, especially in cases of disappearances.¹²⁹

(i) The threshold for inaction to amount to acquiescence

Enforced disappearances are 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 acquiescence 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 of the protection of the law. ¹³⁰ (emphasis added).

Therefore, the question arises under which conditions the actions or omissions of State agents amount to authorisation, support or acquiescence, which would imply the direct responsibility of the State for an enforced disappearance. There is no clear definition of any of these terms in the ICPPED or any supporting documents,¹³¹ and a lack of clarity in the jurisprudence of both the ECtHR and the IACtHR on this matter.¹³² According to the Working Group on Enforced or Involuntary Disappearances, acts of collusion and corruption which allow criminal groups, for example those engaged in the trafficking and smuggling of migrants, amount to ‘implicit or explicit authorization, support or acquiescence of individuals operating in the capacity of State official’.¹³³ However, this does not mean that the threshold for acquiescence necessarily requires collusion, or could be reached in cases of a less obvious connection between State and criminal actors. The Inter-American Court has made statements which suggest a failure of the State to investigate disappearances or killings committed by private actors and ensuing impunity can be considered as a form of ‘assistance’ to perpetrators.¹³⁴ Similarly, the ECtHR has emphasised the importance for authorities to take prompt measures to investigate so as to ‘[prevent] any appearance of collusion in or tolerance of unlawful acts’.¹³⁵ Nonetheless, in the case of disappearances particularly, Article 3 ICPPED establishes specific obligations of States to investigate and prosecute perpetrators who committed disappearances without the authorisation, support or acquiescence of State agents,¹³⁶ which would suggest that a ‘mere’ failure to investigate cannot be considered acquiescence because it constitutes a separate violation of obligations enshrined in the ICPPED.¹³⁷ In the absence of more extensive debates on the meaning of acquiescence, at present, it appears as though there needs to be a certain level of knowledge by State actors of the act in question.¹³⁸ This, however, leads to further questions about the distinction between knowledge as a trigger of the obligation to take specific preventive measures, as discussed above, and knowledge as a trigger for acquiescence.

(ii) Responsibility for a general failure to prevent

Even if there are insufficient elements to establish acquiescence, the State can nevertheless be responsible for its failure to prevent such acts from materialising. In the Cotton Field case, which also concerned a context of widespread and apparently ‘private’ violence, the Inter-American Court noted ‘that the absence of a general policy which could have been initiated at least in 1998—when the CNDH warned of the pattern of violence against women in Ciudad Juárez—is a failure of the State to comply in general with its obligation of prevention’.¹³⁹ However, it found that it could not hold the State responsible for the failure to comply with this general prevention obligation.¹⁴⁰ This reasoning implies that a context of widespread private violence, albeit constituting a general risk, is not sufficient to give rise to a specific human rights violation, even where it can clearly be established that the State did not take sufficiently effective measures to prevent serious private acts of violence.¹⁴¹ Rather, the context of general risk was held to heighten the protection obligations upon being made aware of a risk to specific individuals and to aggravate the failure to adopt diligent measures.¹⁴²

However, where it is clear that specific non-State actors, for example organised criminal groups, are the perpetrators of such violence and this violence has reached certain levels, for example as those in Mexico, the question arises as to whether a different approach would be more suitable. It is important to note that very few cases involving organised criminal groups have come before the ECtHR or IACtHR, and most of these concerned situations of human trafficking,¹⁴³ or only tangentially touched upon the issue of organised crime itself. Nonetheless, this scenario corresponds to the arguments presented by the defence of the Mexican State in the recent case of Alvarado Espinoza and Others v Mexico, which dealt with enforced disappearances in the context of the ‘war on drugs’. One element of the defence was that those who abducted the victims were not soldiers, but criminals dressed in fake military uniforms.¹⁴⁴ While the Inter-American Court found that there was sufficient evidence to show that the perpetrators were in fact members of the Mexican military,¹⁴⁵ which made the case one of an enforced disappearance, the question remains as to how the Court would have approached a scenario where the evidence did not so clearly indicate the direct participation of the military.¹⁴⁶

5. ESTABLISHING STATE RESPONSIBILITY FOR A FAILURE TO PREVENT IN SITUATIONS INVOLVING ORGANISED CRIMINAL GROUPS

Having thus outlined the questions arising from the Mexican context as regards the extent of the responsibility for a failure to prevent in cases where organised criminal groups engage in activities which violate the right to life, this section shows that a victim-based approach, as applied in the Cotton Field case, is ill-suited to such a context. Given the particular characteristics of organised criminal groups as a non-State actor, a source-based approach would be more appropriate.

A. The Problem with the Victim-based Approach

If a State cannot be held responsible for its ‘failure “…” to comply in general with its obligation of prevention’,¹⁴⁷ then even though an application of the rules on States responsibility would suggest that the State is internationally responsible because it breached an international obligation, such responsibility cannot be actualised in a human rights Court or treaty body. This however sits uneasily with the very idea of IHRL and mechanisms to provide avenues to hold States accountable when they fail to ensure the protection of human rights within their jurisdiction, including from violations of these rights by non-State actors.¹⁴⁸ In this sense, the legal nature of the obligation to take general measures to prevent can be questioned.¹⁴⁹

Second, the reduction of State responsibility in relation to disappearances committed by non-State actors to the period after the initial disappearance has been reported, which obfuscates the State’s role in creating a climate of violence and impunity in which such acts are possible on a massive scale.¹⁵⁰ However, in certain cases, it is precisely the general or structural failures that enable violations by private actors in the first place or perpetuate their commission.¹⁵¹ Moreover, a failure to prevent a general risk to society affects society as a whole and creates the conditions in which private acts of violence may be perpetrated. For example, a failure to address impunity is often seen as a cause for the perpetration of private violence and has been held to constitute a form of encouragement of human rights violations, whether by State forces or private individuals.¹⁵² Indeed, such failure could amount to a form of tolerance or acquiescence, which would then make the act directly attributable to the State. If it is the primordial function of the State vis-à-vis those within its jurisdiction to provide protection of their human rights, especially from acts that violate the most fundamental of all rights, the right to life, and that could potentially constitute international crimes, then a consistent failure to take general measures to address such structural issues would render the possibility of protection in individual cases virtually illusory.¹⁵³

Finally, at a more ‘practical’ level, if a State cannot be held internationally responsible for a general failure to prevent, this failure, as well as its causes, cannot be considered for the purpose of reparations, including measures to avoid repetition in the future.¹⁵⁴ This is because it is a general principle of international law that States must provide reparations for the ‘injury caused by the internationally unlawful act’ (emphasis added).¹⁵⁵ Therefore, if a failure to comply generally with an obligation to protect is not an unlawful act, strictly speaking it does not have to be remedied. Especially in relation to disappearance cases, where the awareness of the necessary victim-based risk is only present after the initial disappearance occurred and was reported to the authorities, reparative measures will only encompass the failure to respond to the initial disappearance, rather than a failure to prevent it. While this may be acceptable in a situation of sporadic or isolated acts of private violence, in situations where the scale is such that it is compared with conflicts, such as Mexico, it clearly indicates a systemic failure on the part of the State that goes beyond the lack of effective investigations.

(i) Applying the victim-based approach to Mexico

The example of Mexico illustrates this. In a hypothetical case involving a disappearance committed by members of organised crime without any involvement of State officials, the application of a victim-based approach would entail that the State would only be responsible for failing to prevent this deprivation of liberty if the victim had reported threats to the authorities prior to her disappearance. Responsibility would be limited to its actions and omissions following the report of the disappearance.¹⁵⁶ This would imply that despite widespread levels of ‘pure’ criminal violence, the State would have no legal obligation to take more specific measures to prevent such acts, even though the State knew that organised criminal groups were responsible for the majority of disappearances.¹⁵⁷ It also appears to presuppose that the State could not have taken more specific preventive measures. However, in the Mexican case, there exist clear links between acts and omissions of the State and the rise of violence in the country, including disappearances. These actions and omissions include the nature of anti-drug policies adopted¹⁵⁸ and the failure to address ‘systemic and structural impunity’¹⁵⁹ and corruption, both of which are held to perpetuate the commission of atrocious acts by both State and non-State actors.¹⁶⁰ To hold that the State has no specific obligations to take measures and counter-act the presence of criminal groups in general, despite its awareness of their presence and the risk of violence they represent, seems to deny in some sense the right to protection of their life of the inhabitants of areas where criminal groups operate, unless they have already been deprived of their liberty.¹⁶¹

6. THE NEED FOR A SOURCE-BASED APPROACH TO DISAPPEARANCES COMMITTED BY ORGANISED CRIMINAL GROUPS

Based on the foregoing, a source-based approach to determining State obligations to prevent would be more appropriate in situations involving disappearances, or other violations of physical integrity rights, committed by organised criminal groups. This approach is more suited because it is based on the State’s awareness of the source of a risk as the trigger for its preventive obligations, as well as its position to take general preventive measures, rather than the awareness of a risk to an identifiable individual, which may come too late.¹⁶² Thus, responsibility for a failure to prevent is based on the failure to take measures against a particular source of risk, where the State’s direct (or indirect) contribution to the creation of the risk can be an aggravating factor. Where this source of risk is organised criminal groups, there are two further reasons for the use of a source-based approach—the nature of the relationship between criminal organisations and the State, and the existence of a specialised international legal framework that creates obligations of States to take measures against such organisations.

(i) The relationship between crime and State

An analysis of the relationship between a State and a particular non-State actor is relevant, not just for the purpose of direct attribution,¹⁶³ but also in order to assess the extent to which the State could have taken measures to prevent the risk posed by the non-State actor from materialising.¹⁶⁴ In the case of criminal organisations, due to their illicit nature, the State’s capacity to influence their actions directly may be rather difficult to prove, which distinguishes these situations from those involving paramilitary groups that were initially created by the State.¹⁶⁵ Nonetheless, even though organised criminal groups may never have enjoyed the same legal and official backing by the State as paramilitary groups, they often have relations with authorities and can therefore not be considered as acting with complete independence of the State, nor as inherently antagonistic to it.¹⁶⁶ A failure on the part of the State to address such relations, for example by fighting corruption, influences the power and capacity of organised criminal groups.

In the Mexican context, for example, historic corruption and relations between authorities and criminal groups,¹⁶⁷ paired with almost absolute impunity, could be viewed as a form of tolerance or encouragement to criminal groups and thus, at a minimum, contribution to the risk.¹⁶⁸ Moreover, State policies are considered to have contributed to the escalation of violence, both among criminal groups and in general, which shows that the State is not passive in relation to the risk posed by non-State actors.¹⁶⁹ Moreover, if it is the State’s primordial role to protect the inherent rights of its individuals within its jurisdiction, particularly the right to life,¹⁷⁰ then its actions and omissions in relation to the existence of a particular non-State actor whose activities can pose a threat to this right, must be considered for the purpose of assigning responsibility.¹⁷¹ A failure to do so creates the legal fiction that non-State actors are able to operate with complete independence of State actions, which is an over-simplification that allows States to evade accountability.

(ii) The existence of a specialised legal framework

One of the reasons for using criteria to establish the existence of more specific obligations to prevent is not to impose an impossible burden on the State. Yet in the case of organised criminal groups, there exists an international legal framework which already establishes obligations to counter-act organised crime and corruption. If the source of the risk to the rights of individuals is known to the State, then the measures to be taken to prevent a violation should be aimed at addressing this source or minimising the risk. Where this source is an identifiable private actor, such as organised crime, it may be possible to provide a more detailed ‘list’ of preventive measures which take into account the characteristic of the non-State actor and its relation to the State.¹⁷² This matters especially for the assessment of reasonability and proportionality of the measures taken, which acknowledges the need to balance the interests of the individual and society as a whole, and make choices in budgetary allocations.¹⁷³ The case of organised crime exemplifies this, because there exists a specific international legal framework aimed at countering corruption and transnational organised crime.¹⁷⁴

In this sense, the international crime suppression framework, comprised of the United Nations Convention against Transnational Organised Crime (UNTOC)¹⁷⁵ and its Protocols, as well as the United Nations Convention against Corruption (UNCAC),¹⁷⁶ could be used as a body of lex specialis to determine more specific preventive measures in relation to violations committed by organised criminal groups. Of course, neither UNTOC and its Protocols, nor UNCAC, are human rights instruments aimed at the protection of individual rights from infringement by criminal groups or State action, and they can therefore not be used directly by individuals to hold States accountable. They are further rather punitive in nature, which has raised criticism from a human rights perspective.¹⁷⁷ Nonetheless, they establish general obligations for States to take measures against organised crime and corruption, which, if complied with, are meant to ‘prevent and combat transnational organised crime more effectively’.¹⁷⁸ Where States are Parties to these Conventions, the measures contained therein are already legal obligations that are not subject to balancing considerations. This approach was taken by the ECtHR in the case of Rantsev v Cyprus and Russia, where the Court referred to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children in its proportionality assessment of the ‘burden’ of positive preventive obligations which authorities should have taken to protect victims of human trafficking:

It is relevant to the consideration of the proportionality of any positive obligation arising in the present case that the Palermo Protocol, signed by both Cyprus and the Russian Federation in 2000, requires States to endeavour to provide for the physical safety of victims of trafficking while in their territories and to establish comprehensive policies and programmes to prevent and combat trafficking.¹⁷⁹

The main challenge that would arise from a source-based approach to determining State responsibility is the as yet largely unaddressed question of causation, as well as the question of foreseeability of harm. Such questions are common in scholarship on State responsibility¹⁸⁰ yet have received little attention in scholarship relating to human rights as well as in case law.¹⁸¹

7. CONCLUSION

States have a fundamental obligation to protect human rights, which includes taking preventive measures in relation to acts committed by non-State actors. Nonetheless, States’ preventive obligations are not absolute, and therefore, a failure to prevent requires a context-dependent case-by-case assessment. The ECtHR and the IACtHR use four criteria to determine whether a State had specific obligations to act diligently to prevent a violation by a private actor, yet the application of these criteria is not clear or consistent across cases. Two approaches can be distinguished: first, a victim-based approach, where the State is only held responsible for its failure to act once an initial disappearance has already occurred. Second, a source-based approach, where the State’s awareness of a general risk, and its contribution to exposing society at large, or particular groups of individuals, is taken into account to establish an obligation to act diligently to prevent violations. As the situation of disappearances in Mexico illustrates, in contexts of large-scale private violence the victim-based approach leads to unsatisfactory results, as it ignores the State’s role in the creation of risk and the structural factors leading to the initial disappearance, especially in cases where private violence is exercised by a specific non-State actor. This is because it presupposes the possibility of clearly separating ‘the State’ from the non-State actor, whereas reality is often more complex than this. This is especially the case in contexts of widespread impunity and corruption, which perpetuate private violence. These causal factors can only be considered for the purpose of reparations, in particular guarantees of non-repetition, if they are part of the unlawful act that gave rise to the State’s responsibility. The case of organised criminal groups also shows that the type of non-State actor is relevant for a determination of the scope and reasonableness of prevention measures. This is because States have obligations under a different international framework to take measures against transnational organised crime and corruption, which, while not directly focused on human rights protection, could be used as a form of lex specialis to assess the reasonableness of measures taken. How exactly these instruments can mutually reinforce each other requires further scholarly attention.

If the establishment of international responsibility of the State is to contribute to the protection of human rights, inter alia by determining reparations that include guarantees of non-repetition, then an analysis of broader patterns becomes crucial that includes the State’s contribution, by action or omission, in the creation of risk posed by private actors. Otherwise, what can essentially be viewed as a situation of gross negligence on the part of a State would not lead to its international responsibility, which contradicts the very essence of the State’s primordial role of guaranteeing the human rights of persons within its jurisdiction, inter alia by preventing private acts of violence. Such an analysis, especially in relation to the State’s contribution, implies that the question of causation needs to be addressed in more detail. This is because in cases where Courts have taken into consideration the State’s role in the creation of risk, there is little discussion of causation, which is important for purposes of responsibility and liability in international law.

Footnotes

1United Nations, ‘The Foundation of International Human Rights Law’, 7 October 2015), available at: www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html [last accessed 2 December 2020].

2See Klabbers, ‘(I Can’t Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors’ in Bianchi (ed), Non-State Actors and International Law (2009) at 43.

3Throughout the article, however, the term ‘human rights violations’ will be used to refer also to acts committed by non-State actors. It thereby refers to the de facto violation of human rights and is not meant to imply that such acts are—or should be—considered human rights violations in a legal sense. The use of this terminology is in line with that used by the Inter-American Court. See, for example, Case of Velásquez-Rodríguez v Honduras, IACtHR Series C 4 (1988) at para 172: ‘An illegal act which violates human rights and which is initially not directly imputable to a State “…”’ (emphasis added).

4Kälin and Künzli, The Law of International Human Rights Protection (2009) at 82; McCorquodale, ‘Non-State Actors and International Human Rights Law’ in Joseph and McBeth (eds), Research Handbook on International Human Rights Law (2010) at 97. This is different with regard to International Humanitarian (IHL) and International Criminal Law (ICL). It is by now accepted that non-State armed groups have certain obligations under IHL. See Clapham, ‘Human Rights Obligations of Non-State Actors in Conflict Situations’ (2006) 88 International Review of the Red Cross 491; Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve Their Compliance with International Humanitarian Law’ (2010) 1 Journal of International Humanitarian Legal Studies 5; Dudai and McEvoy, ‘Thinking Critically about Armed Groups and Human Rights Praxis’ (2012) 4 Journal of Human Rights Practice 1. At the same time, ICL, which is concerned with the accountability of individual perpetrators, also applies to individuals who are not members of State forces, but for example members of certain (political) organisations. This is evident in the definition of Crimes against Humanity, which must be perpetrated as part of an attack ‘pursuant to or in furtherance of a State or organizational policy’ (Article 7 (2) (a) Rome Statute of the International Criminal Court 1998, 2187 UNTS 90).

5Alston (ed), Non-State Actors and Human Rights (2005); Clapham, Human Rights Obligations of Non-State Actors (2006); Clapham (ed), Human Rights and Non-State Actors (2013); Weissbrodt, ‘Roles and Responsibilities of Non-State Actors’ in Shelton (ed), The Oxford Handbook of International Human Rights Law (2013); Hessbruegge, ‘Human Rights Violations Arising from Conduct of Non-State Actors’ (2005) 11 Buffalo Human Rights Law Review 21; Noortmann, Non-State Actors in International Law (2015); McCorquodale supra n 4. On the question of subjects in international law more generally, see Klabbers supra n 2.

6Gallagher, The International Law of Human Trafficking (2010) at 218–9.

7The United Nations Convention Against Transnational Organized Crime (UNTOC), defines ‘organised criminal group’ broadly, as ‘a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit’ (Article 2 (a) United Nations Convention Against Transnational Organized Crime 2000, 2225 UNTS 209).

8Kälin and Künzli, supra n 4 at 82.

9Obokata, ‘Smuggling of Human Beings from a Human Rights Perspective: Obligations of Non-State and State Actors under International Human Rights Law’ (2005) 17 International Journal of Refugee Law 394; Gallagher supra n 6. In the case of Alvarado Espinoza and Others v Mexico, the IACtHR stated that ‘the Tribunal considers that due to its nature and complexity, organised crime in its different forms constitutes per se a grave threat to the international community, given that it threatens the security, stability and democratic governability of States, blocks their development and prevents the guarantee of human rights of persons subject to their jurisdiction’ (author’s translation). IACtHR Series C 370 (2018) at para 178.

10Voronkova, ‘Is Mexico Really in a State of Conflict?’, International Institute for Strategic Studies, 12 May 2017, available at: www.iiss.org/blogs/analysis/2017/05/mexico-state-conflict [last accessed 2 December 2020]; Peterke and Wolf, ‘International Humanitarian Law and Transnational Organised Crime’ in Hauck and Peterke (eds), International Law and Transnational Organised Crime (2016) at 403; Lambin, ‘Mexico: Armed Gang Violence Sliding into Armed Conflict?’ in Annyssa Bellal (ed), The War Report: Armed Conflicts in 2017 (2018) at 85.

11Human Rights Committee, General Comment No. 36, Article 6 (the right to life), 3 September 2019, at para 2.

12Gallagher, supra n 6.

13Obokata, supra n 9.

14McGregor, ‘Applying the Definition of Torture to the Acts of Non-State Actors: The Case of Trafficking in Human Beings’ (2014) 36 Human Rights Quarterly 210. On the question of human trafficking as a human rights violation more generally, see also the United Nations Office of the High Commissioner for Human Rights, Factsheet No.36 on Human Trafficking (2014) at 5, available at: http://www.ohchr.org/Documents/Publications/FS36_en.pdf [last accessed 2 December 2020].

15See for example Obokata, Transnational Organised Crime in International Law (2010); Obokata supra n 9; Letschert and Van Dijk (eds), The New Faces of Victimhood (2011); Hauck and Peterke, ‘Organized Crime and Gang Violence in National and International Law’ (2010) 92 International Review of the Red Cross 407; Hauck and Peterke (eds), International Law and Transnational Organised Crime (2016); Decoeur, Confronting the Shadow State: An International Law Perspective on State Organized Crime (2018).

16On State responsibility in relation to smuggling, see Obokata, supra n 9. On State responsibility in relation to trafficking of human beings, see Gallagher, supra n 6; McGregor, supra n 14.

17The European Court of Human Rights is the court that has most extensively dealt with cases of human trafficking but has generally examined this issue in light of States’ obligations under Article 4 ECHR (prohibition of slavery and forced labour). The exception to this is the case of Rantsev v Cyprus and Russia, where the trafficking victim died (Rantsev v Cyprus and Russia Application No. 25965/04, Merits and Just Satisfaction, 7 January 2010). Neither the Inter-American Court of Human Rights nor the Human Rights Committee have dealt with the issue of human trafficking and ensuing violations directly, although the IACtHR analysed States’ obligations to prevent inter alia human trafficking in the Case of the Hacienda Brasil Verde Workers v Brazil, IACtHR Series C 318 (2016) at paras 317–320.

18Commission on Human Rights, ‘Report submitted by Mr. Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances’, 8 January 2002, E/CN.4/2002/71 at para 75.

19While effective human rights protection ultimately depends on domestic efforts, the possibility of appealing to regional or international human rights mechanisms is a fundamental aspect of the protective function of international law in the realm of human rights. See de Schutter, International Human Rights Law: Cases, Materials, Commentary (2010) at 729–30; United Nations, supra n 2.

20See Vermeulen, Enforced Disappearance: Determining State Responsibility under the International Convention for the Protection of All Persons from Enforced Disappearance (2012) at 400 on the lack of jurisprudence by the Human Rights Committee in relation to States’ obligations to protect in disappearance cases particularly, and Edwards, ‘The “Feminizing” of Torture under International Human Rights Law’ (2006) 19 Leiden Journal of International Law 349 at 366, on the lack of case law by the Human Rights Committee on the failure of States to act with due diligence to prevent private harm to victims.

21Commission on Human Rights, ‘Report on the Right to Adequate Food as a Human Right Submitted by Mr. Asbjørn Eide, Special Rapporteur’, 7 July 1987, E/CN.4/Sub.2/1987/23, at paras 66–69.

22Article 2(1) International Covenant on Civil and Political Rights 1966, 999 UNTS 171; Article 1(1) American Convention on Human Rights 1969, 1144 UNTS 143.

23Article 1 European Convention on Human Rights 1950, ETS 5.

24Human Rights Committee, General Comment No.31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (26 May 2004) at para 8; African Commission on Human and Peoples’ Rights, General Comment No.3 on the African Charter on Human and People’s Rights: The Right to Life (Article 4), November 2015 at paras 2 and 41; Case of Velásquez-Rodríguez v Honduras, supra n 3 at para 163; Case of the Pueblo Bello Massacre v Colombia, IACtHR Series C 140 (2006) at para 120; Case of the Hacienda Brasil Verde Workers v Brazil, supra n 17 at paras 316–17; Osman v The United Kingdom Application No 23452/94, Merits and Just Satisfaction, 28 October 1998, at para 115; Mahmut Kaya v Turkey Application No. 22535/93, Merits and Just Satisfaction, 28 March 2000, at para 85; Rantsev v Cyprus and Russia, supra n 17 at para 218. See also van der Have, The Prevention of Gross Human Rights Violations Under International Human Rights Law (2018) at 33 and 35.

25Supra n 3 at para 172.

26Human Rights Committee, General Comment No.31, supra n 24 at para 8.

27Case of Velásquez-Rodríguez v Honduras, supra n 3 at para 177; Case of González et al. (‘Cotton Field’) v Mexico, IACtHR Series C No 205 (2009) at paras 252 and 280; Case of the Hacienda Brasil Verde Workers v Brazil, supra n 17 at paras 322–323; Case of López Soto and others v Venezuela, IACtHR Series C No 362 (2018) at paras 130 and 138; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Merits, ICJ Reports 2007, 43 at 430; Osman v United Kingdom, supra n 24 at para 116; Case of Mastromatteo v Italy Application No 37703/97, Merits and Just Satisfaction, 24 October 2002, at para 68.

28Hakimi, ‘Toward a Legal Theory on the Responsibility to Protect’ (2014) 39 The Yale Journal of International Law 247 at 261.

29Case of Velásquez-Rodríguez v Honduras, supra n 3 at para 175: ‘It is not possible to make a detailed list of all such measures, since they vary with the law and the conditions of each State Party’. This was also re-affirmed by the International Court of Justice in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide: ‘The content of the duty to prevent varies from one instrument to another, according to the wording of the relevant provisions, and depending on the nature of the acts to be prevented’ supra n 27 at para 429. See also Ebert and Sijniensky, ‘Preventing Violations of the Right to Life in the European and the Inter-American Human Rights Systems: From the Osman Test to a Coherent Doctrine on Risk Prevention?’ (2015) 15 Human Rights Law Review 343 at 344.

30For example, the Convention for the Elimination of all Forms of Discrimination Against Women (CEDAW) and the International Convention for the Elimination of All Forms of Racial Discrimination explicitly include the obligation of States to prevent and end discrimination by private actors (see Article 2(d) International Convention on the Elimination of All Forms of Racial Discrimination 1965, 660 UNTS 195; Article 2(e) Convention on the Elimination of All Forms of Discrimination Against Women 1979, 1249 UNTS 13). The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families also includes a specific obligation to protect migrant workers from violence, including violence committed by private actors (Article 16(2) International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 1990, 2220 UNTS 3). Furthermore, the Convention on the Rights of the Child also establishes obligations on States to protect children from violence while in the care of their parents, legal guardians or other persons (Article 19(1) Convention on the Rights of the Child 1989, 1577 UNTS 3). For an overview of international instruments that establish preventive obligations and their content, see also International Law Commission, ‘First report on crimes against humanity by Sean D. Murphy (Rapporteur)’, 17 February 2015, A/CN.4/680 at paras 78–110. Note that at paras 81–82, the report makes a distinction between general and specific preventive measures, which is different from the distinction made in the present article between ‘general’ and ‘specific’ preventive obligations.

31Another way of distinguishing types of prevention obligations is proposed by Nienke van der Have, who separates prevention obligations along a temporal continuum, based on available knowledge of risk. She distinguishes four categories of prevention obligations: long-term prevention, short-term prevention, preventing continuation and preventing recurrence. See van der Have, supra n 24 at 16–17.

32Case of the Xákmok Kásek Indigenous Community v Paraguay, IACtHR Series C 214 (2010) at para 187. The same applies to the obligation to prevent slavery. See Case of the Hacienda Brasil Verde Workers v Brazil, supra n 17 at para 317.

33Case of Velásquez-Rodríguez v Honduras, supra n 3 at para 175; Case of González et al. (‘Cotton Field’) v Mexico, supra n 27 at para 252.

34Human Rights Committee, General Comment No. 36, Article 6, supra n 11 at para 20; Committee Against Torture, General Comment No.2: Implementation of Article 2 by States Parties, 24 January 2008, at para 8; Case of Velásquez-Rodríguez v Honduras, supra n 3 at para 120; Case of González et al. (‘Cotton Field’) v Mexico, supra n 27 at para 252; Case of the Hacienda Brasil Verde Workers v Brazil, supra n 17 at para 319; Mahmut Kaya v Turkey, supra n 24 at para 85; Rantsev v Cyprus and Russia, supra n 17 at paras 218, and 284–5; J and Others v Austria Application No 58216/12, 17 January 2017, at para 106; Genocide Case, supra n 27 at para 426.

35Committee on the Elimination of Discrimination against Women, General Recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, 14 July 2017, at paras 26 and 30; Article 8 Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (‘Convention of Belém do Pará’) 1994, (1994) 33 ILM 1534.

36Article 19 Convention on the Rights of the Child, supra n 30.

37Osman v United Kingdom, supra n 24 at para 115; Mahmut Kaya v Turkey, supra n 24 at para 85; Rantsev v Cyprus and Russia, supra n 17 at para 218; Case of the Pueblo Bello Massacre v Colombia, supra n 24 at para 124; Case of the Hacienda Brasil Verde Workers v Brazil, supra n 17 at para 320.

38Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra n 27 at para 430; Abramovich, ‘Responsabilidad estatal por violencia de género: comentarios sobre el caso “Campo Algodonero” en la Corte Interamericana de Derechos Humanos’ (2010) 6 Anuario de Derechos Humanos 167 at 174.

39Human Rights Committee, General Comment No. 36, supra n 11 at para 23.

40See also below section 3.A.ii.

41Mastromatteo v Italy, supra n 27 at para 74.

42Ibid. at para 72; Maiorano and Others v Italy Application No 28634/06, Merits and Just Satisfaction, 15 December 2009, at para 112; Choreftakis and Choreftaki v Greece Application No 46846/08, Merits and Just Satisfaction, 17 January 2012 at para 56.

43Mastromatteo v Italy, supra n 27 at paras 74–76; Maiorano and Others v Italy, supra n 42 at paras 114–20; Choreftakis and Choreftaki v Greece, supra n 42 at paras 57–60.

44Öneryildiz v Turkey Application No 48939/99, Merits and Just Satisfaction, 30 November 2004; Budayeva and Others v Russia Applications Nos 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, Merits and Just Satisfaction, 20 March 2018.

45Article 2 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries [2001] II (2) Yearbook of the International Law Commission 31 (‘ARSIWA’).

46Ibid. Article 4.

47Ibid. Article 7.

48Ibid. Article 8.

49Ibid. Article 9.

50Ibid. Article 10.

51Ibid. Article 11.

52Ibid. Article 55; see also Crawford, State Responsibility: The General Part (2013) at 114–5.

53Article 1 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 UNTS 85.

54Article 2 International Convention for the Protection of All Persons from Enforced Disappearance 2006, 1726 UNTS 3.

55Victor Abramovich distinguishes these two approaches to responsibility as the ‘doctrine of complicity’ for direct responsibility on the basis of attribution, and the ‘doctrine of risk’ for indirect responsibility on the basis of a failure to protect. See Abramovich, supra n 38 at 175.

56The United Nations treaty bodies appear to take an exclusively victim-based approach in the few cases that have dealt with a failure to prevent outside of the context of non-refoulement obligations. For example, in the case of Yelitze Lisbeth Moreno de Castillo v Venezuela, the Human Rights Committee considered the specificity of the risk to the victim in determining the State’s failure to take protective measures (Yelitze Lisbeth Moreno de Castillo v Venezuela (2610/2015), Views, CCPR/C/121/D/2610/2015 at para 9.3). Similarly, the Committee on the Elimination of Discrimination against Women has dealt with a number of cases involving deadly violence against women at the hands of their (former) partners in which it applied a due diligence standard to assess the State’s responsibility based on knowledge of risk to the victims (see Şahide Goekce v Austria (5/2005), CEDAW/C/39/D/5/2005 at para 12.1.4, and Fatma Yildirim v Austria (6/2005), CEDAW/C/39/D/6/2005 at paras 12.1.4 and 12.1.5).

57See Case of Luna López v Honduras IACtHR Series C 269 (2013) at para 118; Case of González et al. (‘Cotton Field’) v Mexico, supra n 27 at para 252, Case of the Hacienda Brasil Verde Workers v Brazil, supra n 17 at para 328; Osmanoğlu v Turkey Application No 48804/99, Merits and Just Satisfaction, 24 April 2008, at para 77.

58Osman v United Kingdom, supra n 24 at para 116; Mastromatteo v Italy, supra n 27 at para 68; Ilaşcu and Others v Moldova and Russia Application No 48787/99, Merits and Just Satisfaction, 8 July 2004, at para 332; Case of the Xákmok Kásek Indigenous Community v Paraguay, supra n 32 at para 188.

59See Case of Luna López v Honduras, supra n 57 at para 120; Case of González et al. (‘Cotton Field’) v Mexico, supra n 27 at para 280; Case of the Pueblo Bello Massacre v Colombia, supra n 24 at para 123; Case of the Hacienda Brasil Verde Workers v Brazil, supra n 17 at para 323; Case of López Soto and others v Venezuela, supra n 27 at para 138; Osman v United Kingdom, supra n 24 at para 86; Mastromatteo v Italy, supra n 27 at para 68; Osmanoğlu v Turkey, supra n 57 at para 73; Medova v Russia Application No 25385/04, 5 June 2009, Merits and Just Satisfaction, at para 96; Rantsev v Cyprus and Russia, supra n 17 at para 219.

60Supra n 24 at para 116. This approach was explicitly taken up by the IACtHR in the case of Pueblo Bello Massacre v Colombia, supra n 24 at para 123; see also Abramovich, supra n 38 at 174; Ebert and Sijniensky, supra n 29 at 352.

61On the role of knowledge in triggering prevention obligations, see van der Have, supra n 24 at 85–6.

62Abramovich, supra n 38 at 173; Ebert and Sijniensky, supra n 29 at 358.

63The Court found that there had been no violation of the right to life in this case because ‘[i]n the view of the Court the applicants have failed to point to any decisive stage in the sequence of the events leading up to the tragic shooting when it could be said that the police knew or ought to have known that the lives of the Osman family were at real and immediate risk from Paget-Lewis’. Osman v United Kingdom, supra n 24 at para 121.

64Ebert and Sijniensky refer to such risks as ‘structural risks’, which they define as ‘any risk to the life of an individual that is fostered by prevalent social structures, such as racism or sexism, […] often resulting in patterns of widespread violence against members of a certain group.’ See Ebert and Sijniensky, supra n 29 at 362–3.

65Osmanoğlu v Turkey, supra n 57 at para 75.

66Ibid. at para 76.

67Ibid.

68Application No 20147/15, Merits and Just Satisfaction, 5 September 2019, at para 125. As the police committed a series of errors in their investigation of the kidnapping, the Court found that Poland did not comply with its obligation to safeguard the victim’s right to life. See ibid. at para 131.

69Supra n 59 at para 98.

70Ibid. at para 99.

71Supra n 27 at para 242.

72Ibid. at paras 281–2.

73Ibid. at para 282.

74Ibid. at para 284.

75Ibid. at para 283.

76See, for example, Case of the Hacienda Brasil Verde Workers v Brazil, supra n 17; Case of López Soto and others v Venezuela, supra n 27; Case of Véliz Franco et al. v Guatemala IACtHR Series C 277 (2014); Velásquez Paiz and Others v Guatemala, IACtHR Series C No 307 (2015); Case of Gutiérrez Hernández et al v Guatemala IACtHR Series C 339 (2017).

77Abramovich has termed this the ‘created risk doctrine’. See Abramovich, supra n 38 at 175.

78Supra n 27 at para 69.

79Ibid. at para 69; supra n 42 at para 111; supra n 42 at para 49.

80Supra n 27 at para 76.

81Supra n 42 at paras 59–60.

82Maiorano and Others v Italy, supra n 42 at para 110.

83Ibid. at paras 115–121.

84Supra n 44.

85Ibid. at para 74.

86Ibid. at para 87.

87Ibid. at para 81. The ECtHR took a similar approach in the case of Budayeva and Others v Russia, supra n 44.

88Supra n 24 at para 95(35).

89See, for example, the Case of the 19 Merchants v Colombia, IACtHR Series C 109 (2004) and the Case of the ‘Mapiripán Massacre’ v Colombia IACtHR Series C 134 (2005). Note, however, that the criteria for direct attribution in both of these cases are not very clear.

90Supra n 24 at para 140.

91Ibid. at para 135.

92Ibid. at para 125.

93Ibid. at para 139.

94Ibid. at para 126. Unfortunately, the IACtHR did not expand on the reasons why the State’s role in the creation of the risk accentuated this obligation, nor did it consider causal criteria for determining how such a role can influence the State’s obligation.

95Ibid. at para 140.

96Ibid. Note that the wording in this paragraph is slightly confusing, as the Court speaks of attributing responsibility for the acts committed by paramilitary groups to the State, without attributing the acts themselves.

97Serrano, ‘Mexico: A Humanitarian Crisis in the Making’ in Pansters, Smith and Watt (eds), Beyond the Drug War in Mexico: Human Rights, the Public Sphere and Justice (2017) 53; AMLO, ‘Versión Estenográfica de La Conferencia de Prensa Matutina Del Presidente Andrés Manuel López Obrador’, 4 February 2019, available at: www.lopezobrador.org.mx/2019/02/04/version-estenografica-de-la-conferencia-de-prensa-matutina-del-presidente-andres-manuel-lopez-obrador-37/ [last accessed 2 December 2020].

98Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, ‘Entre la invisibilidad y el abandono: un acercamiento cuantitativo al desplazamiento interno forzado en México’, 2019, at 25, available at: www.cmdpdh.org/publicaciones-pdf/cmdpdh-entre-la-invisibilidad-y-el-abandano-acercamiento-cuantitativo-al-desplazamiento-interno-forzado-en-mexico.pdf [last accessed 2 December 2020].

99AlJazeera, ‘Mexico Murder Rate Hits Record High in 2019’, 21 January 2020, available at: www.aljazeera.com/news/2020/01/mexico-murder-rate-hits-record-high-2019-200121053841365.html [last accessed 2 December 2020].

100Comisión Nacional de Búsqueda ‘Búsqueda, identificación y registro de personas desaparecidas (corte al 13 de julio)’, 13 July 2020, available at: www.gob.mx/cms/uploads/attachment/file/563137/Presentacio_n_informe_Comisio_n_Nacional_de_Bu_squeda.pdf [last accessed: 2 December 2020].

101For arguments, in favour of the existence of a non-international armed conflict in Mexico, see Lambin, ‘Mexico: Armed Gang Violence Sliding into Armed Conflict?’ in Bellal (ed), The War Report: Armed Conflicts in 2017 (2018) 83; Comisión Mexicana de Defensa y Promoción de los Derechos Humanos and ITESO, ‘The Situation of Drug-Related Violence in Mexico from 2006–2017: A Non-International Armed Conflict?’ (2019), available at: www.cmdpdh.org/publicaciones-pdf/cmdpdh-la-situacion-de-la-violencia-con-las-drogas-2006-a-2017.pdf [last accessed 2 December 2020]. For a more general overview of the arguments in relation to the existence of a non-international armed conflict in Mexico, see Rodiles, ‘Law and Violence in the Global South: The Legal Framing of Mexico’s “NARCO WAR”’ (2018) 23 Journal of Conflict and Security Law 269. For a discussion of the applicability of IHL standards to organised crime more generally, see Peterke and Wolf, ‘International Humanitarian Law and Transnational Organised Crime’ in Hauck and Peterke (eds), International Law and Transnational Organised Crime (2016) 381.

102The rate of impunity is estimated to be at 98 per cent. See Inter-American Commission on Human Rights, ‘Situation of Human Rights in Mexico’, OEA/Ser.L/V/II.Doc.44/15, 31 December 2015, at para 484, available at: www.oas.org/en/iachr/reports/pdfs/Mexico2016-en.pdf [last accessed 2 December 2020]. According to Open Society Justice Initiative, this is the highest impunity rate in the region. See Open Society Justice Initiative, ‘Corruption That Kills: Why Mexico Needs an International Mechanism to Combat Impunity’ (2018), at 10, available at: www.opensocietyfoundations.org/sites/default/files/corruption-that-kills-en-20180502.pdf [last accessed 2 December 2020]. On impunity in relation to disappearances specifically, see Cárdenas and Utrilla, ‘La investigación del delito de desaparición forzada’ Animal Político, 12 November 2018, available at: www.animalpolitico.com/blogueros-seguridad-180/2018/11/12/la-investigacion-del-delito-de-desaparicion-forzada/ [last accessed 2 December 2020].

103See, for example, the findings of the Observatory on Impunity and Disappearances in its report on the state of Nuevo León: Observatorio sobre Desaparición e Impunidad, ‘Informe Sobre Desapariciones En El Estado de Nuevo León Con Información de Cadhac’ (2017) at 25–34, available at: www.flacso.edu.mx/sites/default/files/observatorio_-_informe_nuevo_leon.pdf [last accessed 2 December 2020].

104See Comisión Nacional de Búsqueda ‘Informe sobre fosas clandestinas y registro nacional de personas desaparecidas o no localizadas’, 6 January 2020, available at: www.gob.mx/cnb/articulos/informe-sobre-fosas-clandestinas-y-registro-nacional-de-personas-desaparecidas-o-no-localizadas [last accessed: 2 December 2020].

105See Committee on the Elimination of Discrimination against Women, Concluding Observations on Mexico, 7 August 2012, CEDAW/C/MEX/CO/7–8 at paras 11 and 20; Committee on the Elimination of Discrimination against Women, Concluding Observations on Mexico, 25 July 2018, CEDAW/C/MEX/CO/9 at paras 23–4.

106Camacho Servín, ‘En 11 años han desaparecido 151 luchadores sociales’ La Jornada, 17 May 2018, available at: www.jornada.com.mx/2018/05/17/politica/016n2pol [last accessed 2 December 2020].

107Román, ‘Familia veracruzana pagó rescate por un hijo y perdió a dos de sus miembros’ La Jornada, 2 November 2015, available at: www.jornada.com.mx/2015/11/02/politica/005n2pol [last accessed 2 December 2020].

108See Berman and Clark, ‘State Terrorism: Disappearances’ (1982) 13 Rutgers Law Journal 531.

109See Observatorio sobre Desaparición e Impunidad, supra n 103 at 25; Proceso, ‘“¿Les ha quedado grande el cargo?”, lanza madre de militar desaparecido a Peña y Cienfuegos’, 8 May 2018, available at: www.proceso.com.mx/533346/les-ha-quedado-grande-el-cargo-lanza-madre-de-militar-desaparecido-a-pena-y-cienfuegos [last accessed 2 December 2020]; Alzaga, ‘Defensa Nacional Busca a 242 Militares Desde 2010’ Milenio. 23 June 2014, available at: www.milenio.com/policia/defensa-nacional-busca-242-militares-2010 [last accessed 2 December 2020].

110Inter-American Commission on Human Rights, Human Rights of Migrants and Other Persons in the Context of Human Mobility in Mexico, OEA/Ser.L/V/II.Doc. 48/13, 30 December 2013, at para 167, available at: www.oas.org/en/iachr/migrants/docs/pdf/Report-Migrants-Mexico-2013.pdf [last accessed 2 December 2020]. See also Citroni, ‘The First Attempts in Mexico and Central America to Address the Phenomenon of Missing and Disappeared Migrants’ (2017) 99 International Review of the Red Cross 735.

111Comisión Nacional de Búsqueda, supra n 100.

112This number was reported by Mexico’s National Human Rights Commission in late 2019. See Associated Press, ‘Mexico Rights Agency: 30,000 Unidentified Bodies in “Crisis”’ AP NEWS, 1 November 2019, available at: www.apnews.com/b987ab1a6c8f425c86f5764247395ab2 [last accessed 2 December 2020].

113This is the case in the state of Jalisco, where the forensic authorities oversaw the incineration of more than 1500 unidentified bodies between 2006 and 2015. In some cases, no DNA samples were taken prior to incineration, making an identification virtually impossible. See Franco Migues, ‘Desaparecer Hasta Volverse Cenizas’, 9 April 2019, available at: www.quintoelab.org/project/volversecenizas [last accessed 2 December 2020].

114Guillén and Petersen, ‘El regreso del infierno: los desaparecidos que están vivos’, 4 February 2019, available at: www.adondevanlosdesaparecidos.org/2019/02/04/los-desaparecidos-que-estan-vivos/ [last accessed 2 December 2020].

115Arteta, ‘México tiene una crisis forense: titular de Comisión de Búsqueda’ Animal Político, 5 March 2019, available at: www.animalpolitico.com/2019/03/desaparecidos-morgues-crisis-forense-karla-quintana/ [last accessed 2 December 2020].

116AMLO, supra n 97.

117See, for example, Working Group on Enforced or Involuntary Disappearances, Report on Mission to Mexico, 20 December 2011, A/HRC/19/58/Add.2; Human Rights Watch, Mexico’s Disappeared: The Enduring Cost of a Crisis Ignored (2013), available at: www.hrw.org/report/2013/02/20/mexicos-disappeared/enduring-cost-crisis-ignored [last accessed 2 December 2020]; See also Inter-American Commission on Human Rights, supra n 102; Observatorio sobre Desaparición e Impunidad, supra n 103.

118Mexico is of course not the only country where the lines between ‘State’ and ‘crime’ are blurred. See Godson (ed), Menace to Society: Political-Criminal Collaboration around the World (2003); Decoeur, supra n 15.

119Washington Office on Latin America, ‘Nuevo Informe Pone En Duda La Versión Oficial Del Caso Ayotzinapa En México’, 7 September 2015, available at: www.wola.org/es/2015/09/nuevo-informe-pone-en-duda-la-version-oficial-del-caso-ayotzinapa-en-mexico/ [last accessed 2 December 2020].

120Grupo Interdisciplinario de Expertos Independientes, Informe Ayotzinapa: Investigación y primeras conclusiones de las desapariciones y homicidios de los normalistas de Ayotzinapa (2015) at 320–324.

121See Aguayo, ‘En El Desamparo: Los Zetas, El Estado, La Sociedad y Las Víctimas de San Fernando, Tamaulipas (2010), y Allende, Coahuila (2011)’ (2017), available at: eneldesamparo.colmex.mx [last accessed 2 December 2020]; Aguayo and Dayán, El Yugo Zeta: Norte de Coahuila, 2010–2011 (2017); Thompson, ‘Anatomía De Una Masacre’ ProPublica, 12 June 2017, available at: www.propublica.org/article/allende-zetas-cartel-masacre-y-la-dea [last accessed 2 December 2020]; University of Texas School of Law Human Rights Clinic, ‘“Control … Over the Entire State of Coahuila” An analysis of testimonies in trials against Zeta members in San Antonio, Austin, and Del Rio, Texas’, November 2017, available at: www.law.utexas.edu/wp-content/uploads/sites/11/2017/11/2017-HRC-coahuilareport-EN.pdf [last accessed 2 December 2020].

122‘Movement for Our Disappeared in Mexico’ (author’s translation). The Movimiento is made up of over 60 relatives’ groups and civil society organisations and was formed in early 2015, available at: movndmx.org/ [last accessed 2 December 2020].

123Ley General en Materia de Desaparición Forzada de Personas, Desaparición Cometida por Particulares y del Sistema Nacional de Búsqueda de Personas 2017 (DOF 17-11-2017). Author’s translation.

124The Law is seen as important progress at the domestic level, despite some shortcomings, which include the definition of ‘disappearance committed by private individuals’. See Committee on Enforced Disappearances, Follow-up observations on the additional information submitted by Mexico under article 29, para 4, of the Convention, 13 November 2018, CED/C/MEX/CO/R.1/Add.1 at paras 10–11.

125See Open Society Justice Initiative, supra n 102.

126International Crisis Group, ‘Building Peace in Mexico: Dilemmas Facing the López Obrador Government’, Latin America Report No 69, 11 October 2018, at 2–4, available at: www.crisisgroup.org/latin-america-caribbean/mexico/69-building-peace-mexico-dilemmas-facing-lopez-obrador-government [last accessed 2 December 2020]; Serrano, supra n 97; Shirk and Wallman, ‘Understanding Mexico’s Drug Violence’ (2015) 59 Journal of Conflict Resolution 1348.

127On human rights violations committed by the Mexican armed forces in the context of the ‘war on drugs’, see also the case of Alvarado Espinoza and Others v Mexico, supra n 9 at para 176. See ibid. at paras 177–183 on the use of the armed forces in a public security context more generally.

128The discussion on whether atrocities committed by organised criminal groups reach the required scale and organisation to amount to crimes against humanity lies beyond the scope of this article, but it is important to note that the existence of international crimes can have an impact on the obligations of the State, as well as other States. For an argument on the existence of crimes against humanity in Mexico, see Open Society Justice Initiative, Undeniable Atrocities: Confronting Crimes against Humanity in Mexico (Open Society Foundations, 2016) available at: www.justiceinitiative.org/publications/undeniable-atrocities-confronting-crimes-against-humanity-mexico [last accessed 2 December 2020]; Comisión Mexicana de Defensa y Promoción de los Derechos Humanos et al., ‘Crimes Against Humanity in the War on Drugs: Submission for Mexico’s Third Universal Periodic Review (2018)’, 2018, available at: www.cmdpdh.org/publicaciones-pdf/cmdpdh-epu-crimenes-de-lesa-humanidad-en-el-marco-de-la-lucha-contra-las-drogas-en.pdf [last accessed 2 December 2020].

129This question has not yet been addressed in a clear manner by either the ECtHR or the IACtHR. See Vermeulen, supra n 20 at 425.

130Article 2 International Convention for the Protection of All Persons from Enforced Disappearance, supra n 54.

131Vermeulen, supra n 20 at 65–6.

132On the rather confusing use of the term ‘acquiescence’ in the jurisprudence of the ECtHR, see Milanovic, ‘State Acquiescence or Connivance in the Wrongful Conduct of Third Parties in the Jurisprudence of the European Court of Human Rights’, 15 September 2019, available at: http://www.dx.doi.org/10.2139/ssrn.3454007 [last accessed 2 December 2020].

133See Working Group on Enforced or Involuntary Disappearances, Report on Enforced Disappearances in the Context of Migration, 28 July 2017, A/HRC/36/39/Add.2 at para 37. This is also in line with the rules on State responsibility, according to which an act can be attributed to a State if it was carried out by one of its agents acting in his official function, even where the latter acted ultra vires. Thus, corrupt acts by public officials are in principle attributable to the State. See Commentary on Article 7, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, supra n 45 at 46, note 150.

134Case of Velásquez-Rodríguez v Honduras, supra n 3 at para 177; Case of the Pueblo Bello Massacre v Colombia, supra n 24 at para 145; Case of González et al. (‘Cotton Field’) v Mexico, supra n 27 at para 291; Case of López Soto and others v Venezuela, supra n 27 at para 223. See also Vermeulen, supra n 20 at 421. For an argument in favour of considering a systemic failure to investigate acts of torture at the hands of private actors as a form of acquiescence, see McCorquodale and La Forgia, ‘Taking Off the Blindfolds: Torture by Non-State Actors’ (2001) 1 Human Rights Law Review 189 at 206–7; Committee Against Torture, General Comment No. 2 on the implementation of article 2 by States parties (2008) at para 18.

135Buldan v Turkey Application No 28298/95, Merits and Just Satisfaction, 20 April 2004, at para 84; Olewnik-Cieplińska and Olewnik v Poland, supra n 68 at para 137.

136The full text of Article 3 ICPPED is: ‘[e]ach State Party shall take appropriate measures to investigate acts defined in article 2 committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice.’

137See also Vermeulen, supra n 20 at 425–9.

138See Edwards, supra n 20 at 374–5, on the Committee Against Torture’s approach to acquiescence in cases of domestic violence. See also Milanovic, who argues that a greater level of knowledge is required for acquiescence than for a failure to protect, supra n 132 at 18. For a different view, see McCorquodale and La Forgia, who argue that ‘actual’ knowledge is not crucial, supra n 134 at 207.

139Supra n 27 at para 282.

140Ibid. The Court reiterated this in the Reparations: ‘The three gender-based murders in this case took place in a context of discrimination and violence against women. It does not correspond to the Tribunal to attribute responsibility to the State merely for the context; however, it cannot refrain from noting the extreme importance that the rectification of this situation signifies for the general measures of prevention that the State must adopt so that women and girls in Mexico can enjoy their human rights, and it invites the State to consider this.’ Ibid. at para 463.

141See ibid. at para 279. For a criticism of not finding responsibility on the basis of a general failure, see the Concurring Vote of Judge Ferrer Mac-Gregor Poisot in the case of Velásquez Paiz and Others v Guatemala, supra n 76.

142Ibid. at para 283; Case of the Hacienda Brasil Verde Workers v Brazil, supra n 17 at para 342; Case of Velásquez Paiz v Guatemala, supra n 76 at para 122. See also Case of Gutiérrez Hernández et al. v Guatemala for an example where the IACtHR did not find it established that the State was aware of a general risk to life for women who disappeared and therefore found that the Guatemalan authorities had no ‘strict’ obligations in relation to reports of disappearances of women, supra n 76 at para 139.

143An example of this is the case of Rantsev v Cyprus and Russia, supra n 17.

144Supra n 9 at para 162.

145Ibid. at paras 190–2.

146Research has shown that organised criminal groups in Mexico have made use of fake military uniforms in certain parts of the country. See Aguayo and Dayán, supra n 121 at 15.

147Case of González et al. (‘Cotton Field’) v Mexico, supra n 27 at para 282.

148Furthermore, and beyond International Human Rights Law, it touches upon the very core of the notion of ‘obligation’ and ‘responsibility’ in law, which is inherently tied to the possibility of being held liable or sanctioned for failing to adhere to the obligation. See Glanville, ‘On the Meaning of “Responsibility” in the “Responsibility to Protect”’ (2011) 20 Griffith Law Review 482 at 488.

149Ebert and Sijniensky, supra n 29 at 364.

150See Abramovich, who notes that had the victims in the ‘Cotton Field’ case been murdered directly and not previously kidnapped, the State would not have been found responsible at all, despite the existence of a general context of violence. Abramovich, supra n 38 at 181.

151On this, see the Concurring Vote of Judge Ferrer Mac-Gregor Poisot in the case of Velásquez Paiz and Others v Guatemala, criticising the Court’s approach to establish responsibility only for the State’s failures during the ‘second moment’, rather than also for its general failure to create a mechanism that would ensure an effective search for disappeared women, supra n 141 at paras 44–6.

152See above at section 4.B.i, supra n 134 and n 135.

153See Hakimi, ‘State Bystander Responsibility’ (2010) 21 European Journal of International Law 341 at 347; Glanville, supra n 148 at 487.

154This is different for cases which involve structural discrimination and where the violation in question can be linked to such discrimination. See Case of González et al. (‘Cotton Field’) v Mexico, supra n 27 at para 450. On the importance of guarantees of non-repetition as preventive measures, see Committee Against Torture, General Comment No. 3: Implementation of article 14 by States parties (2012) at para 18.

155Article 31(1) Draft Articles on the Responsibility of States for Internationally Wrongful Acts, supra n 41.

156The IACtHR clearly stated this in the ‘Cotton Field’ case, where it held that ‘[i]t does not correspond to Tribunal to attribute responsibility to the State merely for the context’. Case of González et al. (‘Cotton Field’) v Mexico, supra n 27 at para 463.

157This is what the government of Mexico continues to argue. See AMLO, supra n 97.

158See above at section 4.B. On the militarization of public security and its impact on the rise of human rights violations in Mexico, see Alvarado Espinoza and Others v Mexico, supra n 9 at paras 54–64.

159Inter-American Commission on Human Rights, supra n 102 at para 485; Guevara Bermúdez and Chávez Vargas, ‘La impunidad en el contexto de la desaparición forzada en México’ (2018) EUNOMÍA. Revista en Cultura de la Legalidad 162 at para 172.

160See Open Society Justice Initiative, supra n 102.

161For a counterargument, note the partly dissenting opinion of Judge Gölcüklü in the case of Mahmut Kaya v Turkey. Judge Gölcüklü disagreed with the majority’s decision that found a violation of the right to life based on the State’s failure to protect the victim because in areas with a high risk for all inhabitants ‘surely, it is for people living in the region who feel threatened to exercise greater care than others and to take their own safety precautions, rather than wait for the authorities to protect them against those dangers’, Supra n 24, Partly Dissenting Opinion by Judge Gölcüklü at para 1. Furthermore, he argued that it was impossible for security forces to provide individual protection to every person in such areas. Yet here, the point is not that a State should be held responsible for not providing individual protection to every single person but rather that the general measures taken by the State should be considered for the purpose of determining whether the State took reasonable measures, even if it is more difficult to establish a direct causal connection between such general failures and a specific violation. This was indeed the position taken by the majority in Mahmut Kaya v Turkey. The Court found that Turkey had ‘failed to take reasonable measures available to [the authorities] to prevent a real and immediate risk to the life of Hasan Kaya’, ibid. at para 101, because it could have taken measures to counter activities by the State’s security forces and those non-State groups who allegedly worked with their acquiescence (ibid. at para 100) which was something that the authorities were aware of (ibid. at para 91). However, the Court found that there was no effective application of criminal law in the region, which deprived the victim of legal protection (ibid. at paras 94–8).

162For a similar argument relating to the ‘immediacy’ criterion, see Ebert and Sijniensky, supra n 29 at 365.

163See Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, supra n 45, Commentary on Article 8, at 47–48.

164Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra n 27 at para 430. For a more in-depth discussion on how capacity to influence may trigger obligations to protect, see Hakimi, supra n 28 and Hakimi, supra n 153.

165See the Pueblo Bello Massacre v Colombia, supra n 24 at para 126 and above at section 3.A.ii.

166On the relationship between State and crime, see Godson, supra n 118; Decoeur, supra n 15.

167Pimentel, ‘Mexico’s Legacy of Corruption’ in Godson (ed), Menace to Society: Political-Criminal Collaboration around the World (2003) 175. On the historic link between politics and drug-trafficking in Mexico, see Astorga Almanza, Drogas sin fronteras (2015).

168Further research would be required to determine the causal criteria required to determine that a State ‘objectively created’ a situation of risk. The IACtHR did not specify such criteria in its reasoning in Pueblo Bello supra n 24 at 126.

169See also Abramovich, supra n 38 at 174.

170Ebert and Sijniensky, supra n 29 at 343.

171On this, see Abramovich supra n 38 at 182, who notes that States are very rarely just passive bystanders to violations committed by private actors.

172One example of this is the UN Guiding Principles on Business and Human Rights. The first set of principles refers to the State’s duty to protect human rights and establishes principles for the State to act in relation to businesses. See United Nations, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ (2011). Monica Hakimi lists fighting gang violence as a protective measure which States may have to take to comply with their duty to protect. See Hakimi, supra n 28 at 261.

173Ilaşcu and Others v Moldova and Russia, supra n 58 at para 332; Ebert and Sijniensky, supra n 29 at 344. See also above at section 3.A.

174For an overview of State obligations in relation to transnational organised crime, see Obokata, supra n 15; Transnational Organised Crime in International Law (2010); Hauck and Peterke (eds), supra n 15. On the specific subject of ‘State organised crime’, see Decoeur, supra n 15.

175United Nations Convention Against Transnational Organized Crime, supra n 7.

176United Nations Convention against Corruption 2003, 2349 UNTS 41.

177On this, see Boister, ‘Human Rights Protections in the Suppression Conventions’ (2002) 2 Human Rights Law Review 199.

178Article 1, United Nations Convention Against Transnational Organized Crime, supra n 7. Similarly, Article 1(a) of the United Nations Convention Against Corruption lists among the purposes of the Convention ‘[t]o promote and strengthen measures to prevent and combat corruption more efficiently and effectively’ supra n 176.

179Rantsev v Cyprus and Russia, supra n 17 at para 287.

180In particular in relation to shared responsibility as well as liability for lawful acts, see Murmann, ‘Problems of Causation with Regard to (Potential) Actions of Multiple Protagonists’ (2014) 12 Journal of International Criminal Justice 283; Gattini, ‘Breach of International Obligations’ in Nollkaemper and Plakokefalos (eds), Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art (2014) 25; Plakokefalos, ‘Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity’ (2015) 26 European Journal of International Law 471.

181The question of causation has received some attention in discussions of corruption and human rights violations. See Sepúlveda Carmona and Bacio-Terracino, ‘Corruption and Human Rights: Making the Connection’ in Boersma and Nelen (eds), Corruption & Human Rights: Interdisciplinary Perspectives (2010) 25; Peters, ‘Corruption as a Violation of International Human Rights’ (2018) 29 European Journal of International Law 1251 at 1267–72; Peters, ‘The Risk and Opportunity of the Humanisation of International Anti-Corruption Law: A Rejoinder to Kevin E. Davis and Franco Peirone’, EJIL: Talk!, 18 February 2019, available at: www.ejiltalk.org/the-risk-and-opportunity-of-the-humanisation-of-international-anti-corruption-law-a-rejoinder-to-kevin-e-davis-and-franco-peirone/ [last accessed 2 December 2020].

Author notes

PhD Researcher, KU Leuven, Belgium, lene.guercke@kuleuven.be. This research has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement no. 677955). A previous version of this article was presented at the Seminar Global Human Rights at Risk? Challenges, Prospects, and Reforms, organised by Leiden University, Campus The Hague (The Hague, 6–7 June 2019). Thanks to Prof. Parmentier and the anonymous reviewer for their comments on the manuscript.

© The Author(s) [2021]. Published by Oxford University Press.

This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited.

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