of the nation”.132 Both arbitrary killings by the State’s authorities and the failure to prevent and punish deprivation of life by criminal acts constitute violations of the right to life.133 Given that uncertainty as to the condition or fate of the victim is an essential aspect of ED, it is important to consider the standard and burden of proof when trying to establish ED as a violation of the right to life. standard of proof “which considers the seriousness of the charge and which [..] is capable of establishing the truth of the allegation in a convincing manner.”140 In particular, the IACtHR established that the standard of proof could not be as high as that of a criminal investigation and that the use of circumstantial or presumptive evidence was most important in cases of ED.141 Previously the HRCt applied the “beyond reasonable doubt standard” of criminal law in respect of the violation of Article 6 of the ICCPR (right to life) and State responsibility was recognised only in cases of proven or presumed death.134 The many cases of ED brought before the HRCt since the late 1990s in relation to Algeria helped modify this approach, in conformity with IACtHR jurisprudence. In 2011, in Aouabdia v. Algeria, the majority of the HRCt found a violation of Article 6 read in conjunction with Article 2(3) (which stipulates the State’s duty to provide an effective remedy to victims of human rights violations), even though it could not be established as a matter of fact that the victim had died.135 In 2012, the judgment in Guezout and ors (on behalf of Kamel Rakik and ors) v. Algeria relied on a broader interpretation of Article 6 to find that the State’s failure to protect life constituted a direct violation of Article 6(1).136 The IACtHR also developed an ad hoc approach to the burden of proof. Where ED is widespread or systematic, or follows an identifiable pattern, the IACtHR has noted that the initial burden falls upon the petitioner to show that the case was linked to an official practice of disappearance carried out or tolerated by the government. However, after this the burden then shifts to the State, which has to show what happened to the disappeared persons, and that it was not related to any such official practice.142 While this approach is not limited to the right to life, it has been essential in the finding of a violation of this right in the absence of direct evidence as to the fate of the victim. Similarly, the IACtHR also applies a presumption of death due to an ED when the victim was last seen under the control of the State. The IACtHR has held that such a presumption inverts the burden of proof, so that the party that is alleged to have had control over the detained person, generally the State, must prove that the person has not died in their custody.143 The HRCt has followed this interpretation to find direct violations of Article 6 in its subsequent judgments on cases of ED.137 The European Court of Human Rights (“ECtHR”) has also held that ED constitutes a violation of the right to life under Article 2 of the European Convention on Human Rights. The Court applies a presumption when the victim has last been seen alive in life-threatening circumstances and the respondent State fails to provide a convincing explanation as to his or her fate and In the leading case of Velászquez Rodríguez138, the IACtHR established that ED constituted a flagrant violation of the right to life.139 In order to establish ED as a violation of the right to life, the IACtHR recommended the adoption of a 132 133 134 135 136 137 138 139 140 141 142 143 UN Human Rights Committee (“HRCt”), General Comment No. 36, Article 6 (Right to life), CCPR/C/GC/36, 3 September 2019, para. 2. HRCt, General Comment No.36, supra note 130, para. 7. IACtHR, Bleier v. Uruguay, Communication No. 20/1978, 29 March 1982. HRCt, Zarzi (on behalf of Aouabdia and ors) v Algeria, Communication No. 1780/2008, 22 March 2011. HRCt, Guezout and ors (on behalf of Kamel Rakik and ors) v Algeria, Communication No. 1753/2008, 19 July 2012, para. 8.4. HRCt, Larbi v Algeria, Communication No. 1831/2008, 25 July 2013, para. 8(4); HRCt, Mihoubi (on behalf of Mihoubi) v Algeria, Communication No/1874/2009, 7 January 2014, para. 7(4); in Yuba Kumari Katwal v. Nepal, the HRCt found that the lack of effective investigation by Nepal into the killing of the victim constituted a violation of Article 6; in Chhedulal Tharu and others v. Nepal, the HRCt found a violation of Article 6 as Nepal failed in its duty to protect the lives of the victims’ relatives; in Midiam Iricelda Valdez et al. v. Mexico, the HRCt found a violation of Article 6 in respect of Mexico’s failure to submit information showing that it had taken measures to protect the life of the victim while he was detained by State authorities; see also HRCt, Maria Eugenia Padilla García and others v Mexico, Communication No. 2750/2016, 13 September 2019, para. 9(6). IACtHR, Velásquez Rodríguez v. Honduras, judgment of 29 July 1988, Series C No. 4, para. 157. IACtHR, American Convention on Human Rights (“ACHR”), Article 4: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.” Ibid., para. 129. Ibid., para. 131. Ibid., para. 124-126. IACtHR, Radilla-Pacheco v. Mexico, Judgment of 23 November 2009, paras. 47 and 48. 28