Impunity remains a defining feature in States that have systematically perpetrated or tolerated enforced disappearances. Though international judicial bodies such as the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR)—as well as quasi-adjudicatory bodies such as the Human Rights Committee (HRC)—have made some progress in holding States themselves accountable for grave human rights abuses and international crimes, they have had very little success in prompting domestic investigations or prosecutions. The following Note proposes that international judicial and quasi-judicial bodies adopt a novel burden-shifting framework derived from the jurisprudence of the HRC, IACtHR, and ECtHR that creates stronger incentives for States to fully investigate the fates of disappeared persons. Under this framework, international institutions should first determine whether domestic authorities have failed to conduct rigorous investigations to establish a systematic pattern of disappearances in a defendant State. Once an institution has determined that there is a systemic practice of enforced disappearance, that State will bear the burden of proving that it was not involved in every alleged disappearance brought to its attention—a burden it can only meet by conducting an adequate and effective investigation. Ideally, all other complainants will then be able to establish a prima facie case of State responsibility by making a minimal showing of evidence demonstrating that they or a loved one were subjected to an enforced disappearance. In so doing, the proposed framework seeks to leverage a deliberately overinclusive framework to exert maximal reputational pressure on States and thereby overcome powerful countervailing domestic political pressures.
