Disappeared Children, Questions of Conflicting Rights, and the Rights to Truth and a Judicial Remedy

Jeffrey Davis, Professor, UMBC,

Stuart Holton, Sondheim Scholar, UMBC


In March 2016, Irish authorities excavated a mass grave revealing the remains of more than 800 children at the Tuam Mother and Baby Home. At another site, Bassborough, a mass grave of more than nine hundred children was uncovered a year later. These homes were created by the Irish government with the Catholic Church to house unwed mothers, while encouraging forced adoption. They operated from the 1920s until 1998. In 2014 the government established the Commission of Investigation to investigate the extent of the abuse inflicted in these homes and in January 2021, it issued its report.  Though the Commission revealed significant evidence of abuse and neglect, and though it recommended several concrete steps to redress those violations, human rights advocates criticized the report for sealing witness testimony and personal identifying information. One advocacy group claimed the Commission destroyed recordings of testimony from 550 witnesses without creating transcripts.    

Uxenu Ablaña was six years old when he was forced into a Catholic run orphanage after Spanish police killed his parents for opposing Franco in the Civil War. Over the next 12 years Uxenu was called a “communist devil,” beaten, and abused. An estimated 31,000 children were taken from their families and placed in state sponsored institutions in Spain between 1945 and 1954. Tens of thousands more were allegedly taken from their mothers at birth and placed with families deemed more in line with the Franco regime’s ideology. American and Canadian officials inflicted similar violations on indigenous children by coercing them into Residential Schools. Here too mass graves have been uncovered.  Argentina implemented mandatory DNA testing to arm people with the tools necessary to reveal the truth about the children disappeared during its dirty war. This raised controversies over the surviving children’s right to privacy. 

When a state takes a child from her family and confines her to an institution, or unlawfully places her with more “socially or politically desirable” parents, the states’ actions attack the foundations of human dignity and identity. The allegations provoke complex and desperately important questions of human rights that are generalizable to numerous areas of the field: 

  • What does human rights law demand of states when confronted with allegations of past (perhaps distant past) violations?  In overcoming impunity, the rights to truth and to a judicial remedy are perhaps the most important but some democracies still refuse to acknowledge these positive obligations.
  • To what extent can private actors be held accountable.  In many of the missing children cases the Catholic Church operated the institutions in question.  
  • Can human rights conflict with one another?  These stories also demand that we conceptualize rights precisely to minimize claims that the assertion of one right infringes on another. We hear claims of conflicting rights from the religious shopkeeper who wishes to deny service to LGBTQ+ customers, or when the radio personality claims the free expression rights to attack a group in his society.  Or when a child – now grown – claims her right to privacy bars the disclosure of her story to biological family members demanding their right to truth. 
  • This heartbreaking controversy brings forth another question; who possesses rights like the right to truth and to a judicial remedy?  When a child is forcibly taken and placed with another family is the biological grandparent entitled to the truth to the same degree as the child himself?  Are they both victims of the same violation?

In her study of the Argentine case, Professor Elizabeth Ludwin King argues that since there is no precedent determining a hierarchy of the rights to truth and privacy, the state may make that determination. On the other hand, in his book, ThePromise of Human Rights, Jamie Mayerfeld suggests that, if the restrictions and obligations of a right are precisely defined, they will rarely conflict. Mayerfeld’s suggestion is instructive in this context. Perhaps we may protect a child’s right to hold the details of her biological origins private if we tailor the biological uncle’s right to truth strictly to the violation he suffered. On the other hand, a child’s right to privacy perhaps should not extend to preventing a biological mother from knowing the identity of a son stolen from her at birth. As Professor Mégret explained in his analysis of Argentina, this raises the issue of how we conceptualize victimhood for certain rights violations. Scholars, courts, and legislators must carefully balance these weighty concerns when outlining the boundaries of these rights.

States undoubtedly have a positive obligation to enforce the rights to truth and to a judicial remedy against state officials and private actors. In O’Keefe v. Ireland (2014) the European Court of Human Rights ruled that the state was liable for sexual abuse committed at church run schools. According to the Court, Ireland fell short of its positive obligation to protect the children in these schools from abuse. The Inter-American Court has also ruled that states have the positive obligation to protect children from abuse, and to investigate allegations of the forced disappearance and illegal placement of missing children. Many of the violations against children and families alleged in these nations involve people and events from the distant past, where all or most who were directly involved have passed away. In these cases, the state still has the obligation to reveal the truth and restore the dignity of the surviving family members and communities. 

The rights to truth and to a judicial remedy must be diligently pursued. Otherwise, as the European Court of Human Rights recently explained, without justice human rights protections would “be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.”  

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