The Struggle against Enforced Disappearance and the 2007 United Nations Convention

The Struggle against Enforced Disappearance and the 2007 United Nations Convention The Struggle against Enforced Disa...

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The Struggle against Enforced Disappearance and the 2007 United Nations Convention

The Struggle against Enforced Disappearance and the 2007 United Nations Convention By

Tullio Scovazzi and Gabriella Citroni

LEIDEN • BOSTON 2007

Cover based on a design by Federico Rosa. This book is printed on acid-free paper. A Cataloging-in-Publication record for this book is available from the Library of Congress.

ISBN 978 90 04 16149 8 © Copyright 2007 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

Cito nombres al azar del recuerdo, imágenes aisladas de unas pocas lápidas en un interminable cementerio de sepultados en vida. Pero cada nombre vale por cien, por mil casos parecidos, que sólo se diferencian por los grados de crueldad, de esa monstruosa voluntad de exterminación que ya nada tiene que ver con la lucha abierta. (. . .) Hay que mantener en un obstinado presente, con toda su sangre y su ignominia, algo que ya se está queriendo hacer entrar en el cómodo país del olvido; hay que seguir considerando como vivos los que acaso ya no lo están pero que tenemos la obligación de reclamar, uno por uno, hasta que la respuesta muestre finalmente la verdad que hoy se pretende escamotear. (Julio Cortázar, 1981)

Contents Foreword ...................................................................................... Acknowledgments ........................................................................ Abbreviations ............................................................................... Chapter I. The Dimension and Purposes of Enforced Disappearance .......................................................................... 1 Preliminary Remarks .......................................................... 2 The Precedent: Nacht und Nebel ........................................ 3 Enforced Disappearance as a Means to Eliminate Opponents and Spread Terror among the Population ....... 3.A Guatemala ................................................................ 4 Enforced Disappearance of Children to Prevent the Opposition from Growing and to Obtain Profit from their Adoption ............................................................................ 4.A Argentina .................................................................. 4.B Guatemala ................................................................ 4.C El Salvador ................................................................ 5 Enforced Disappearances Carried out by Paramilitary Groups ............................................................................... 6 Enforced Disappearance of People from Whom Information Relevant for Anti-Terrorism Purposes Can Be Extracted ... 6.A The “Not-in-my-backyard” Doctrine ........................ 6.B From Abroad to the “State of the President of the United States” (Guantanamo Bay) ............................ 6.C From Abroad to Abroad (Extraordinary Renditions) ............................................................... 6.D The Fight Against Terrorism and Human Rights ..... 7 The Diffusion of Enforced Disappearance ......................... 7.A Europe ...................................................................... 7.B Asia ........................................................................... 7.C Africa ........................................................................ 8 The Role of Truth and Reconciliation Commissions ......... 8.A Argentina .................................................................. 8.B El Salvador ................................................................

xiii xv xvii

1 1 4 7 10

14 15 18 20 21 25 25 26 42 59 62 63 65 69 72 75 79

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8.C Guatemala ............................................................... 8.D Conclusive Remarks ................................................ International Actions for the Prevention and Suppression of Enforced Disappearances ............................................. The Role Played by Non Governmental Organizations ...

Chapter II. Overview of International Case Law on Enforced Disappearance .......................................................................... 1 The Importance of International Case Law ..................... 2 The Human Rights Committee ....................................... 2.A Bleier v. Uruguay ..................................................... 2.B Quinteros v. Uruguay ............................................... 2.C Arévalo v. Colombia ................................................. 2.D El-Megreisi v. Libyan Arab Jamahiriya ..................... 2.E Mojica v. Dominican Republic ................................. 2.F Tshishimbi v. Zaire .................................................. 2.G Mónaco v. Argentina ................................................ 2.H Bautista v. Colombia ................................................ 2.I Celis Laureano v. Peru ............................................. 2.J Vicente and others v. Colombia ................................ 2.K Menanteau Aceituno and Carrasco Vásquez v. Chile ... 2.L Vargas Vargas v. Chile .............................................. 2.M Coronel and others v. Colombia ................................ 2.N Jegatheeswara Sarma v. Sri Lanka ............................ 2.O Yurich v. Chile ......................................................... 2.P Bousroual v. Algeria ................................................. 2.Q Boucherf v. Algeria ................................................... 3 The Interamerican Court of Human Rights .................... 3.A Velásquez Rodríguez v. Honduras .............................. 3.B Godínez Cruz v. Honduras ....................................... 3.C Fairén Garbi and Solís Corrales v. Honduras ............ 3.D The Provisional Measures in the Case Reggiardo Tolosa v. Argentina ................................................... 3.E Neira Alegría and others v. Peru ............................... 3.F Caballero Delgado and Santana v. Colombia ............ 3.G Garrido and Baigorria v. Argentina .......................... 3.H Castillo Páez v. Peru ................................................ 3.I Blake v. Guatemala .................................................. 3.J Benavides Cevallos v. Ecuador ..................................

87 93 94 97

101 101 101 102 104 107 109 110  112 114 116 118 119 121 122 123 125 127 129 132 132 136 137 138 139 141 142 143 146 149

4

5

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Contents

ix

3.K El Caracazo v. Venezuela .......................................... 3.L Durand and Ugarte v. Peru ..................................... 3.M Trujillo Oroza v. Bolivia .......................................... 3.N Bámaca Velásquez v. Guatemala ............................... 3.O Molina Theissen v. Guatemala .................................. 3.P 19 Comerciantes v. Colombia ................................... 3.Q Hermanas Serrano Cruz v. El Salvador .................... 3.R Masacre de Mapiripán v. Colombia .......................... 3.S Gómez Palomino v. Peru .......................................... 3.T Blanco Romero and others v. Venezuela ..................... 3.U Masacre de Pueblo Bello v. Colombia ....................... 3.V Goiburú and others v. Paraguay ............................... 3.W La Cantuta v. Peru .................................................. The European Court of Human Rights ........................... 4.A Kurt v. Turkey ......................................................... 4.B Çakici v. Turkey ....................................................... 4.C Timurtas v. Turkey ................................................... 4.D Ciçek v. Turkey ........................................................ 4.E Cyprus v. Turkey ...................................................... 4.F Akdeniz and others v. Turkey .................................... 4.G Orhan v. Turkey ...................................................... 4.H Tashin Acar v. Turkey .............................................. 4.I Tekdag v. Turkey and Ipek v. Turkey ........................ 4.J Recent cases against Turkey .................................... 4.K Magomadov and Magomadov v. Russia .................... 4.L Bazorkina v. Russia .................................................. 4.M Imakayeva v. Russia ................................................. 4.N General Remarks ..................................................... The Human Rights Chamber for Bosnia and Herzegovina ..................................................................... 5.A Matanović v. Serb Republic ...................................... 5.B Grgić v. Serb Republic .............................................. 5.C Palić v. Serb Republic ............................................... 5.D Selimović (Srebrenica cases) and others v. Serb Republic ........................................................... Conclusive Remarks on International Case Law ..............

150 151 152 155 159 163 166 171 174 177 178 180 185 188 189 192 196 198 199 202 204 206 208 209 211 212 214 220 224 227 231 233 235 244

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Chapter III. The Existing International Legal Framework on Enforced Disappearance ........................................................... 1 The 1992 Declaration for the Protection of All Persons from Enforced Disappearance .......................................... 1.A The First Steps ........................................................ 1.B The Content of the 1992 Declaration .................... 1.C The Implementation of the 1992 Declaration ....... 2 The Interamerican Convention on Forced Disappearance of Persons ......................................................................... 3 The Rome Statute for the Establishment of an International Criminal Court .......................................... 4 The Need for a Universally Legally Binding Instrument ... Chapter IV. The 2007 Convention and its Main Legal Issues .... 1 An Autonomous Human Right not to be Subjected to Enforced Disappearance ................................................... 2 The Definition of the Offence ......................................... 3 Enforced Disappearance as a Crime against Humanity ... 4 Codification, Jurisdiction, Extradition and Investigation ... 4.A Codification of the Offence under Domestic Criminal Law .......................................................... 4.B Superior Orders ...................................................... 4.C Jurisdiction and Extradition .................................... 4.D Criminal Investigations over Enforced Disappearances ........................................................ 5 Statute of Limitations ...................................................... 6 The Continuous Nature of the Offence ........................... 7 Competence of Military or Special Courts ...................... 8 Amnesties, Pardons and Similar Measures for Perpetrators of Enforced Disappearances ............................................. 9 The Right to Obtain Information about Persons Deprived of Their Liberty ............................................................... 10 The Victims of the Offence .............................................. 11 The Right to Know the Truth ......................................... 12 Respect for Human Remains ........................................... 13 The Forms of Reparation ................................................. 14 Enforced Disappearances and Children ........................... 15 The Monitoring Body ......................................................

245 245 245 249 251 252 254 255 265 265 267 285 295 295 298 300 304 306 309 314 320 329 342 347 360 369 381 387

Contents

xi

Conclusions .................................................................................

397

Post Scriptum ..............................................................................

399

Text of the Convention for the Protection of All Persons from Enforced Disappearance ...............................................................

401

Bibliography .................................................................................

419

Index ............................................................................................

427

Foreword On 6 February 2007 the International Convention for the Protection of All Persons from Enforced Disappearance was opened for signature in Paris. This is the result of the 25-year struggle by relatives of disappeared people worldwide, the commitment of some experts and human rights activists, and the good will of a number of States. The authors of this book* try here not only to mirror the experience of the elaboration of an international legal instrument, but also to express their feelings towards the existence and the dimension of such a scourge. This may explain why, rather than just strictly focusing on legal issues and doctrine, they have preferred to report the events in detail and to try to echo the suffering of the victims of enforced disappearance and their relatives, to whom this book is dedicated. G. Citroni and T. Scovazzi

* While the purposes and contents of this book have been discussed and agreed upon by both authors, G. Citroni has written Chapters II and IV and T. Scovazzi Chapters I and III.

Acknowledgments We would like to thank the Italian Ministry of Foreign Affairs for the opportunity to participate, as legal experts, in the negotiations for the drafting of the 2007 Convention. In particular, we are grateful to Min. Massimo Curcio for the continuous support. We are also grateful to the “Dipartimento Giuridico delle Istituzioni Nazionali ed Europee” of the University of Milano-Bicocca for the financial contribution received. We are greatly indebted to Ms. Susan Phillips Clavarino for the thorough revision of the English text, to Ms. Maria Clara Maffei for the helpful suggestions and to Mr. Federico Rosa for the evocative cover design. Gabriella Citroni and Tullio Scovazzi *

*

*

I would like to express my deepest gratitude to all the relatives of victims of enforced disappearances I have known and worked with. It is impossible to name all of them here, but I wish them to know that every single face, every single expression and the words of all of them are in my heart and are always with me. Their suffering, their tears, their hopes and their struggle are now also mine. My thanks also to Mounir, Aasya, Azucena, Rosario, Giovanni, Jean Dominique, Elizabeth, Paolo, Elida, Oscar, Maria Luisa, Paolo and Eduardo: they are not here any longer, but they continue to inspire my life. Many thanks to Loyola Guzmán Lara, Lucrecia Molina Theissen, Marta de Vásquez Ocampo, Marta Suarez, José Alvarez and Mary Aileen Bacalso: they are precious friends, colleagues and, above all, living examples. I wish to say a special thank you to Federico Andreu Guzmán for his teachings, for being a master, for his friendship, for his struggle. I am also most grateful to Tanya Smith and Santiago Corcuera Cabezut. Their work, their passion and their personal dedication to the struggle against enforced disappearances represent hope for thousands of relatives all around the world. My thanks also to Ewoud Plate and Dave Hardy for the special work they are doing. My gratitude goes to all the people working at the Interamerican Court of Human Rights (in particular, Gabriela

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Acknowledgments

Pacheco, Ona Flores, Támara Biolo Soares, Antonio Cançado Trindade and Olger González): their hard work and their tireless dedication constitute at the same time an example and a hope. Karla Quintana Osuna deserves a very special thank you in this sense. I would also like to express my sincere appreciation for the dedication and the work of Gisela de Leon and Soraya Long at CEJIL-Mesoamerica. A special thanks to Kathleen Pook Gaioni and Matteo Lancini for their friendship and their assistance in this work. I would also like to thank the Sisters of the Visitation, Angelo, Lino, Domenico, Fabio and Lucio. My deepest gratitude goes to my family, Andrés and Maya, for their indispensable support and presence in my life. . . . Todavía cantamos, todavía pedimos, todavía esperamos, todavía soñamos . . .

Gabriella Citroni

Abbreviations – – – – – – – – – – – – –

– –

–

–

–

AFAD = Asian Federation against Involuntary Disappearances AJIL = American Journal of International Law CHC = Guatemalan Commission for Historical Clarification CONADEP = Argentine National Commission on the Disappearance of Persons ECHR = European Court of Human Rights FEDEFAM = Federación Latinoamericana de Asociaciones de Familiares de Detenidos Desaparecidos HRC = Human Rights Committee HRCBH = Human Rights Chamber for Bosnia and Herzegovina IACHR = Interamerican Court of Human Rights ICommHR = Interamerican Commission on Human Rights ICRC = International Committee of the Red Cross ILM = International Legal Materials Intersessional Open-ended Working Group = Intersessional Open-ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of All Persons from Enforced Disappearance OAS = Organization of American States Principles on Reparation = Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law Principles to Combat Impunity = Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity Report by Mr. Nowak = United Nations, Commission 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 Report by Mr. Pourgourides = Council of Europe, Parliamentary Assembly, Enforced Disappearances, Report to the Committee on Legal Affairs and Human Rights, Rapporteur Mr. Christos Pourgourides

xviii

Abbreviations

– UNGWEID = United Nations Working Group on Enforced or Involuntary Disappearances – 1992 Declaration = Declaration on the Protection of All Persons from Enforced Disappearance – 1994 Interamerican Convention = Interamerican Convention on Forced Disappearance of Persons – 1998 Draft Convention = Draft International Convention on the Protection of All Persons from Forced Disappearance – 1998 Rome Statute = Rome Statute for the Establishment of an International Criminal Court – 2007 Convention = International Convention for the Protection of All Persons from Enforced Disappearance

Chapter I The Dimension and Purposes of Enforced Disappearance 1.1

Preliminary Remarks

Enforced disappearance is one of the most serious human rights violations which affects a number of human rights, namely the right to security of the person, the right to protection under the law, the right not to be arbitrarily deprived of one’s liberty, the recognition of the legal personality of every human being and the right not to be subjected to torture or to other cruel, inhuman or degrading treatment or punishment. In some cases, depending on the circumstances, it might also be related to violations of the right to life and of the rights of the family and the child, of freedom of thought, expression, religion and association and of the general prohibition of discrimination on any grounds. However, some common elements are always present and make enforced disappearance an autonomous offence having a continuing character.1 Indeed, the disappeared person is not the only victim:2 his family is also subjected to inhuman and degrading treatment3 and the society as a whole is deprived

1

2

3

For a complete analysis of the phenomenon see United Nations, Commission 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, E/CN.4/2002/71, 8 January 2002, in particular, paras. 6–11. Hereinafter referred to as “Report by Mr. Nowak”. The authors of this book have, though reluctantly, decided not to use a gender balanced wording (he/she, his/her, etc.). This has been done for the only purpose of making the text more readable. However, the authors pay a tribute to the thousands of disappeared women worldwide and to the courage and dignity of many women who are relatives of the victims. See infra 4.10.

2

Scovazzi & Citroni – Chapter I

of the right to know the truth4 and, when the offence is widespread, is thrown into a general state of terror. The first instance of a widespread practice of enforced disappearance occurred during World War II.5 In the second half of the 20th century, enforced disappearances developed as a systematic practice in Latin America,6 and especially in Guatemala between 1963 and 1966 within the context of a 36-year long internal armed conflict. During the Seventies and the Eighties the practice spread to other Latin American countries, such as El Salvador, Chile, Uruguay, Argentina, Brazil, Colombia, Peru, Honduras, Bolivia, Haiti and Mexico.7 All these countries were characterized by more or less persistent situations of internal armed conflicts, tensions, guerrilla or troubles in general. In the same period, the practice of enforced disappearances was reported also in other continents. According to data provided by Amnesty International, by some of the United Nations ad hoc Commissions working on issues related to enforced disappearances and by other human rights international organizations both of governmental and non governmental nature, from 1970 to 2000 about 100,000 people were victims of enforced disappearance in Latin America. If Asia, Africa and Europe are added, the total number of disappeared persons during the last 30 years rises to between 300,000 and 500,000. This figure cannot be established with certainty due to the very nature of the phenomenon. Today, as stated on 3 October 2006 by Mr. Toope, Chairperson of the Working Group on Enforced or Involuntary Disappearances,8 while

4 5 6

7

8

See infra 4.11. See infra 1.2. A.L. Molina Theissen, La desaparición forzada de personas en América Latina, in KO’AGA ROÑE ‘ETA, Ser. VII, 1998 (http://www.derechos.org/koaga/vii/molina.html). Precedents might be found back in 1910, when some cases of enforced disappearance took place in Guatemala, under the regime of Manuel Estrada Cabrera (M.A. Asturias, El Señor Presidente, Ciudad de Guatemala, 1946). Council of Europe, Parliamentary Assembly, Enforced Disappearances, Report to the Committee on Legal Affairs and Human Rights, Rapporteur Mr. Christos Pourgourides, Doc. 10679, 19 September 2005, para. 12. Hereinafter referred to as “Report by Mr. Pourgourides”. The UNGWEID was established in 1980 by the Commission on Human Rights, Resolution 20 (XXX/VI), 29 February 1980. Its mandate is to assist families in determining the fate and whereabouts of their relatives who, having disappeared, are placed outside the protection of the law. The UNGWEID endeavours to establish a channel of communication between the families and the governments concerned, to ensure that individual cases which families

The Dimension and Purposes of Enforced Disappearance

3

presenting the 2005 Report of the Working Group to the Human Rights Council, Enforced disappearance had become a global problem not restricted to a specific region. Once largely the product of military dictatorships, disappearances were now perpetrated in complex situations of internal conflict, in regimes undergoing radical political changes and as a means of political repression of opponents. Potential underreporting of disappearances, particularly in Africa, could result in the submission of large numbers of reports in coming years. While its mandate was limited to violations involving State actors, the Working Group condemned such acts, irrespective of the perpetrators.9 [. . .] The Working Group’s Report highlighted four main areas of concern. The first was disappearances of children and persons with disabilities [. . .]. The second area was the harassment of human rights defenders, relatives of victims, witnesses and legal counsels. [. . .] Thirdly, concern had arisen over the use by States of counter-terrorist activities as an excuse for breaching their obligations. [. . .] Lastly, in some post-conflict situations, truth and reconciliation mechanisms could give rise to the enactment of amnesty laws that resulted in impunity.10

This book will deal with enforced disappearance as a human rights violation and will not elaborate on those situations where the relevant rules of humanitarian law11 apply (missing in action combatants, persons displaced and separated from their families, etc.). In these cases the International Committee of the Red Cross is entitled to exercise special competences.12

9

10 11

12

have brought to the Group’s attention are investigated with the objective of clarifying the whereabouts of disappeared persons. See infra 3.1.A. See the UNGWEID Web page http://www.ohchr.org/english/issues/ disappear/index.htm; and F. Andreu Guzmán, “Le Groupe de travail sur les disparitions forcées des Nations Unies”, in International Review of the Red Cross, 2002, pp. 803–818. United Nations, Human Rights Council, Summary Records of the 3rd Meeting, A/HRC/2/ SR.3, 3 October 2006, para. 3. Ibid., para. 5. This does not exclude that human rights law generally applies for the aspects not specifically regulated by international humanitarian law, in the sense that many human rights have to be granted and respected both in times of peace and of war. On the issue, see, inter alia, IACHR, Case Hermanas Serrano Cruz v. El Salvador, judgment of 23 November 2004 (Preliminary Objections; infra 2.3.Q ), in particular dissenting opinion of Judge A.A. Cançado Trindade, paras. 39–41; International Court of Justice, Case of The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, advisory opinion of 9 July 2004, para. 106. See also infra 4.1. See, inter alia, M. Sassoli, M.-L. Tougas, “The ICRC and the Missing”, in International Review of the Red Cross, 2002, pp. 727–750.

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In this chapter a general overview of the purposes and variations related to the practice of enforced disappearance will be made so as to understand the nature of the offence and its legal implications.

1.2

The precedent: Nacht und Nebel

The first instance of enforced disappearance can be dated back to World War II, when thousands of people were secretly transferred to Germany from the occupied territories in Europe under the decree known as Nacht und Nebel (“Night and Fog”), issued on 7 December 1941 by the German Führer and Supreme Commander of the Armed Forces, Adolf Hitler. As recalled in the proceedings of the Nuremberg Tribunal, the decree introduces a fundamental innovation. The Führer and Supreme Commander of the Armed Forces orders that offences committed by civilians in the occupied territory and of the kind mentioned above [= offences against the Reich or against the occupation forces], are to be dealt with by the competent Military Courts in the occupied territory only if (a) the death penalty is pronounced and (b) sentence is pronounced within eight days of the prisoner’s arrest. Unless both these conditions are fulfilled, the Führer and Supreme Commander of the Armed Forces does not anticipate that criminal proceedings within the occupied territories will have the necessary deterrent effect. In all other cases the prisoners are in future to be transported to Germany secretly, and further dealings with the offence will take place there; these measures will have a deterrent effect because (a) the prisoners will vanish without leaving a trace, (b) no information may be given as to their whereabouts or their fate.13

On the basis of the Nacht und Nebel decree, Field-Marshal Wilhelm Keitel, the Chief of the German Armed Forces High Command, signed on 12 December 1941 the following regulations: After thoughtful consideration, it is the will of the Führer that the measures taken against those who are guilty of offences against the Reich or against the occupation forces in occupied areas should be altered. The Führer thinks that in the case of such offences life imprisonment, even life imprisonment with hard labour, is regarded as a sign of weakness. An effective and lasting deter-

13

The Trial of German Major War Criminals – Proceedings of the International Military Tribunal Sitting at Nuremberg, vol. 3, London, 1950, p. 214.


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rent can be achieved only by the death penalty or by taking measures which will leave the family and the population uncertain of the fate of the offender. The deportation to Germany serves this purpose.14

A practice of enforced disappearance was thus established as a measure against the civilian population to produce a deterrent effect. Accused people should be tried and sentenced to death within eight days, probably to avoid their being considered by the local population as martyrs in the case of lengthy proceedings against them. If such a quick and deadly result could not be achieved, the fate of the arrested people was to vanish without leaving a trace. Hitler clearly understood that effective and lasting intimidation of a civilian population can only be achieved either by capital punishment or by measures which keep the victim’s relatives and the population in general uncertainty as to his fate. He also understood that vanishing without trace may be even worse than dying. Keitel followed Hitler’s path and signed the regulations. A letter written on 24 June 1942 by the Chief of the German Security Police implicitly clarifies that the fate of those who vanished was to be killed. In full consistency with the logic of enforced disappearance, the letter also points out that the relatives were not to be informed of the death of the victim, in order to prolong their state of uncertainty: It is the intent of the Führer and Commander-in-Chief of the Wehrmacht concerning prosecution of criminal acts against the Reich or the occupation forces in occupied territories, dated 7th December 1941 (. . .) to create, for deterrent purposes, uncertainty over the fate of prisoners among their relatives and acquaintances, through the deportation into Reich territory of persons arrested in occupied areas on account of activity inimical to Germany. This goal would be jeopardised if the relatives were to be notified in cases of death. Release of the body for burial at home is unadvisable for the same reason, and beyond that also because the place of burial could be misused for demonstrations. I therefore propose that the following rules be observed in the handling of cases of death: (a) Notification of relatives is not to take place. (b) The body will be buried at the place of decease in the Reich. (c) The place of burial will, for the time being, not be made known.15

Before the Nuremberg Tribunal, Marshal Keitel put all the blame for Nacht und Nebel on Hitler:

14 15

Ibid. (English translation, emphasis is added). Ibid., p. 215 (English translation).

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He [= Hitler] said that pacification could only be achieved if sabotage decreased; that, instead of death sentences – if, as stated in the decree, a death sentence could be expected and carried out – and instead of lengthy court-martial proceedings with numerous witnesses, the suspect or guilty persons (if one may use the word ‘guilty’) should be deported to Germany without their families knowing, and be interned or imprisoned.16

Marshal Keitel did not deny that the Nacht und Nebel decree was “not compatible with international law, and that he knew that”.17 He explained that the formula “after thoughtful consideration, it is the will of the Führer that”, as he wrote in the regulations he signed on 12 December 1941, was tacitly intended by the commanders on the field as an invitation to be lenient in the application of orders that, while imposed by Hitler, were not approved by himself.18 He stated in his defence that he did not know how the regulations were applied, in particular “that on arrival in the Reich the persons involved were imprisoned by the police and then transferred to concentration camps”.19 Asked about what the worst things were that he had had to do which were against the inner voice of his conscience – and there were many –, he answered: Worst of all, the ‘Nacht und Nebel ’ decree and the actual consequences it entailed at a later stage, and about which I did not know.20

In his final declaration before the decision by the Tribunal, Keitel asked himself two questions and concluded as follows: The second question was: ‘How would you act if you were in the same position again?’ My answer: ‘Then I would rather choose death than allow myself to be drawn into the net of such pernicious methods’.

16 17 18 19

20

Ibid., vol. 11, p. 24. Ibid., vol. 18, p. 214. Ibid., vol. 11, p. 24. Ibid., vol. 18, p. 214. “I learned here for the first time the full extent of the tragedy, viz.: that this order, which was only intended for the Wehrmacht and for the sole purpose of determining whether a criminal who faced a sentence in jail might be made to disappear by means of this ‘Nacht und Nebel ’ procedure, was obviously applied universally by the police, as testified by witnesses whom I have learned here, and according to the indictment which I also heard; and so the horrible fact of the existence of whole camps full of people deported through the ‘Nacht und Nebel ’ procedure has been proved” (ibid., vol. 11, p. 24). Ibid., vol. 11, p. 76.


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From these two answers the High Tribunal may see my viewpoint. I believed, I erred, and I was not in a position to prevent what should have been prevented. That is my guilt. It is tragic to have to realize that the best I have to give as a soldier, obedience and loyalty, was exploited for purposes which could not be recognized at that time, and that I did not see that there is a limit set even for a soldier’s performance of his duty. That is my fate.21

The Nuremberg Tribunal found Keitel guilty: There is nothing in mitigation. Superior orders, even to a soldier, cannot be considered in mitigation where crimes so shocking and extensive have been committed consciously, ruthlessly and without military excuse or justification.22

Keitel was sentenced to death and hanged.

1.3 Enforced Disappearance as a Means to Eliminate Opponents and Spread Terror among the Population Resort by State authorities to enforced disappearances has served different purposes depending on the specific circumstances. In each case, enforced disappearance has its own, albeit perverse, logic. The most common kind of enforced disappearance was carried out, in complete violation of the domestic legislation, by State agents in the context of a State policy to fight members of the insurgent movements or, more generally, political opponents and their supporters. If those who exercised power wanted to keep it any cost, for their own benefit and the benefit of their allies, the most direct way to pursue such a purpose was to make their opponents disappear. During the Eighties, virtually throughout the Latin American region, many of the people who disappeared were representatives of political parties, trade unionists, teachers, students and leaders of cultural groups, members of minorities. Under the “national security doctrine” people who were labelled as “internal enemies, opponents, terrorists or subversive elements” were considered targets to eliminate. The chosen means to free the region

21

22

Ibid., vol. 22, p. 388. The first question was “In case of a victory would you have refused to participate in any part of the success?” Keitel answered: “No, I should certainly have been proud of it”. Ibid., p. 493.

8


from this “threat” to national security was disappearance. It also happened that the victims were qualified according to broad criteria. As stated by the Argentine dictator, Jorge Rafael Videla, “terrorists are not only those who bear with them a bomb or a gun, but also all those who spread ideas which are contrary to the Christian and Western civilization”.23 The practice of enforced disappearance was also carried out to achieve a second and equally important aim, that is to spread terror (an instance of so-called “State terrorism”). Society as a whole was forced to live in a climate of physical and psychological submission to the benefit of those who, while violating the most basic laws of human coexistence, enjoyed a condition of total impunity. If people are seen being abducted and are later found dead after severe tortures or disappear for ever, everybody, even those who have no intention of becoming political opponents, is placed in a condition of fearful subjection to those who hold power and exercise it through terror. The practice was, at the same time, illegal and notorious: everybody knew that people disappeared and could easily imagine who was responsible for it. But it was difficult to react, be it only for the sake of legality, because of the lack of information on the specific cases and the increasingly widespread climate of terror. This helped those who held power to retain it. In fact some State authorities used the concept of national security and the pretext of the terrorism of others to pursue their own terrorist purposes. What happened in several cases is described hereunder. In the first stage, the victim of enforced disappearance is deprived of his liberty. The abduction is carried out by a group of armed people who present themselves at the home or at the place where the victim works or studies, driving cars without number plates and with polarized windows. They often operate in civilian clothes or, in certain cases, they do not even bother to hide that they are members of the army or the police. Sometimes, especially in countries where guerrillas are active, they try to disguise themselves as members of revolutionary groups, to pin the blame on them, as a technique to create resentment towards the rebels within the society. Other possible authors of acts of enforced disappearance are paramilitary groups,24 whose members are trained, armed and supported by the regular army.25

23 24

25

D. Padoan, Le pazze – Un incontro con le madri di Plaza de Mayo, Milano, 2005, p. 53. The expression “paramilitary groups” indicates clandestine organized groups of persons effectively armed, trained and supported by the regular army. See, inter alia, A.L. Molina Theissen, La desaparición forzada, supra note 6, p. 6. From 5 to 13 July 2005, the UNGWEID has carried out its second in loco visit to


9

The second stage of enforced disappearance is secret detention. The victim is transferred to a military barracks or to clandestine and secret places of detention. Frequently, the victim is subjected to several transfers, to make it impossible to understand where he is and to prevent him from communicating with other prisoners. Usually, these special prisoners are kept separate from all the others and left in a regime of strict isolation. The aim is to exhaust their psychological and physical resistance. No prisoners of this kind are taken before any legitimate judicial authority for formal interrogation or for the communication of criminal charges. The disappeared are deprived of any legal assistance. Their relatives are not told where they may be found or what the formal charges against them are. The third stage of enforced disappearance is interrogation. According to the testimonies of some of the few who survived an enforced disappearance and to what emerged from subsequent investigations, interrogations are often carried out by teams of specialists, including psychologists, psychiatrists and doctors, who hide their identity behind pseudonyms and masks. In fact, these people are specialists in torturing human beings. The aim at this stage is not to physically eliminate the victim, but to break any kind of resistance and to obtain information, turning the prisoner into a collaborator of the regime. The victims are completely deprived of their dignity. Often they are kept naked and are repeatedly raped. To increase this state of pressure and constant anguish, victims are forced to watch or to take part in torture carried out on their relatives or other prisoners. Prisoners are never called by their names, but with offensive nicknames or by numbers. In the meantime, any trace of the victims is lost in the outside world. The more time passes, the fewer are the possibilities of finding them, dead or alive. A state of severe psychological deterioration affects the family of the disappeared person: depression, anxiety, stress, even cases of suicide are the consequence of having been thrown into the unbearable situation of not knowing whether the loved one is dead or alive.26 The relatives cannot mourn the dead or elaborate the grief, as this would mean abandoning all hope and, somehow, metaphorically becoming the killer of the loved one. This is what psychologists call “frozen grief ” which may lead to irreparable mental damage.

26

Colombia. See Report of the UNGWEID – Mission to Colombia, E/CN.4/2006/56/Add.1, 17 January 2006. On the issue of the psychological consequences of enforced disappearances on the relatives of the victim, see, inter alia, IACHR, Case 19 Comerciantes v. Colombia, judgment of 5 July 2004, expert testimony of Doctor Carlos Martín Beristain, infra 2.3.P.

10


The subsequent stage is usually the killing of the disappeared person. When the people in control of the enforced disappearance finally take the decision to eliminate the victim, this is generally done by summary execution. To cover up evidence of the crime, the mortal remains are disposed of in different ways, either by throwing them into the ocean from airplanes or by burying them in common graves or by blowing up the corpses with dynamite or by tearing them into pieces. This is the last stage of the most complete deprivation of any human respect. Obviously, no subsequent impartial or thorough investigations are allowed: instead, a campaign of threats and intimidation and reprisals is carried out against the lawyers who agree to represent the families of the victims or witnesses who agree to testify in trials. By these means the total impunity of those responsible is obtained: enforced disappearance turns into the “perfect crime”. A typical instance of this kind of enforced disappearance can be found in what occurred in Guatemala. 1.3.A

Guatemala

The Final Report presented in 1999 by the Guatemalan Commission for Historical Clarification (hereinafter referred to as “CHC”)27 concluded that: In Guatemala forced disappearance was a systematic practice which in nearly all cases was the result of intelligence operations. The objective was to disarticulate the movements or organisations identified by the State as favourable to the insurgency, as well as to spread terror among the people. The victims of these disappearances were peasants, social and student leaders, professors, political leaders, members of religious communities and priests, and even members of military or paramilitary organisations that fell under suspicion of collaborating with the enemy. Those responsible for these forced disappearances violated fundamental human rights.28 [. . .] The ultimate scope of enforced disappearance of persons is the destruction of something – an organization, the diffusion of a political idea – using someone – the victim.29

The Interamerican Commission on Human Rights repeatedly dealt with the existence of a practice of enforced disappearance in its country reports 27 28

29

See infra 1.8.C. CHC, Guatemala: Memory of Silence, Guatemala, 1999, in “Conclusions”, Chap. IV, para. 89. Ibid., para. 2061.


11

that regarded the situation of human rights in Guatemala. Since 1981, it has reported that: With regard to the right to life, the case of the “missing persons” in Guatemala manifests itself as one of the most serious problems, in view of the way in which the persons have come to be missing and in view of the extraordinary number of victims. This problem emerged in the country in late 1966, together with the intensification of the process of violence and political terrorism. The victims come from all sectors of Guatemala society, but are mostly leaders of opposition and popular organizations, workers, campesinos and teachers, student leaders, and clergymen or their lay assistants. The authors or agents responsible for the kidnappings, arrests, tortures and subsequent murders of the “missing persons” have generally been the security agents or the same paramilitary organizations which have been described previously. According to the many testimonies and reports received by the IACHR, one can indicate the following typical characteristics of the study and systematic practice of this cruel form of repression so widespread in Guatemala: Victims are not legally held by court order or writ, but rather are practically “kidnapped” from their homes, places of employment, meetings, assemblies, or on their way to those places on the public streets and highways. The illegal detentions or abductions are carried out by heavily armed groups of individuals who normally carry submachine guns. They appear and identify themselves orally as belonging to one of the various investigative or security bodies, but they do not inform anybody of the reasons for the alleged arrest or of the centres to which the people will be taken. These groups act under the public eye with complete impunity and they move about in automobiles like those usually used by the police forces, or in automobiles easily identifiable as belonging to the security bodies due to the deteriorated plates they carry or simply because they are never registered for traffic. Many of the kidnappings, assaults and illegal arrests are carried out by groups of men who drive what are called the “Bracos” cars, which are one of the kinds most used by the Guatemalan Government security forces. The obvious impunity with which they operate without at any time there being any interference from or activities by the other authorities or agents for order which are present or nearby, or which are merely needed to act at the request of family members, friends, or eyewitnesses leads to the assumption that they act with the complicity and even the support of the armed and police forces. Victims thus apprehended disappear without a trace, as though they had faded away, without any further notice of their whereabouts. These illegal arrests occur or are carried out publicly, without “hooding” the persons abducted; and when they are carried out at the homes of the victims, their belongings are not looted nor is there a request for “ransom” or for presentation of their identification documents. Neither are the spouses,

12


children or other family members apprehended, except in special cases. The clear purpose is to create panic and intimidation among the other persons present, and it is systematically attempted to avoid identification of the bodies whenever they are found. In some instances they are taken, as an exception and for very short periods, to military barracks or police stations for questioning. Later they almost always appear mutilated and with signs of having suffered brutal torture, floating in the rivers, inside plastic bags, thrown on the streets, in highway ditches or in gorges. As a rule, when the bodies are discovered, they appear brutally disfigured, nude and without documents or signs of identification. In many instances they have been burned, thrown into the ocean or into the mouths or craters of volcanoes. Also, as it has been possible to ascertain in a large number of cases, especially when dealing with members of Indian or rural communities, whose populations have been decimated quite frequently, their bodies have been found already decomposed and rotting, buried together in large common graves.30

The Commission stated its concern about the situation of enforced disappearances in the country on several other occasions.31 The Interamerican Court of Human Rights rendered a number of judgments32 on cases of enforced disappearance that happened during the Guatemalan armed conflict. The Court qualified such a practice as a means of fighting guerrilla forces: It was the Army’s practice to capture guerrillas and keep them in clandestine confinement in order to obtain information that was useful for the Army, through physical and mental torture. These guerrillas were frequently transferred from one military detachment to another and, following several months

30

31

32

ICommHR, Report on the Situation of Human Rights in the Republic of Guatemala, OEA/ Ser.L/V/II.53 Doc. 21 rev. 2, 13 October 1981, Chap. 2 “Missing Persons”, paras. 1–5. ICommHR, Informe sobre la situación de los derechos humanos en Guatemala, OEA/Ser. L/V/II.61 Doc. 47, 3 October 1983, Chap. III.C “Secuestros y Desapariciones”, paras. 1–4; Tercer Informe sobre la situación de los derechos humanos en la República de Guatemala, OEA/Ser.L/V/II.66 Doc. 16, 3 October 1985, Chap. II, Desaparición Forzada de personas, paras. A-N; Cuarto Informe sobre la situación de los derechos humanos en Guatemala, OEA/Ser.L/V/II.83 Doc. 16 rev. 1, 1 June 1993, Chap. IV, “El derecho a la vida y a la integridad personal”; Quinto Informe sobre la situación de los derechos humanos en Guatemala, OEA/Ser.L/V/II.111 Doc. 21 rev., 6 April 2001, Chap. V, “Desaparición Forzada”, paras. 51–57. IACHR, Case Blake v. Guatemala, judgment of 24 January 1998 (Merits); Case Bámaca Velásquez v. Guatemala, judgment of 25 November 2000 (Merits); and Case Molina Theissen v. Guatemala, judgment of 4 May 2004 (Merits). See infra 2.3.I, 2.3.N and 2.3.O.


13

of this situation, were used as guides to determine where the guerrilla were active and to identify individuals who were fighting with the guerrilla. Many of those detained were then executed, which completed the figure of forced disappearance.33

The Court linked together the concepts of “enforced disappearance”, “fear” and “national security”, the latter being the pretext for carrying out the practice. When the facts took place, the forced disappearance of persons was a State practice carried out principally by members of the security forces. The purpose of this practice was to dismantle movements or organizations that the State identified as having “insurgency” tendencies and to instill fear into the population; The State based itself on the “National Security Doctrine” to characterize a person as “subversive” or as an “internal enemy,” and this could be anyone, who genuinely or allegedly supported the fight to change the established order. The victims hailed from all sectors of Guatemalan society: leaders of grass-roots or opposition organizations, workers, peasants, teachers, student leaders, members of religious orders or their lay helpers; This practice was implemented by the army, the civil self-defense patrols [. . .], the military commissioners, the military foot-police, the national police, the judicial police and the “death squadrons”;[. . .] Violence was inevitably used in the forced disappearance of persons carried out by members of State security units. These acts of violence were directed against the victims, their next of kin, and any witnesses to the events. The threats and intimidation of the victims’ next of kin continued for some time after the detention, so as to curb their initiatives to locate the persons detained and to heighten their fear.34

At present, the majority of reported cases of enforced disappearance during the armed conflict remain unsolved.35

33 34 35

IACHR, Case Bámaca Velásquez, supra note 32, para. 121, f ). IACHR, Case Molina Theissen, supra note 32, paras. 40.1, 2, 3, 5. The UNGWEID received information on a case concerning a 14-year-old boy allegedly disappeared in Chiquimula in 2002. UNGWEID, Annual Report for 2005, E/CN.4/2006/56, 27 December 2005, paras. 243–249. See, inter alia, ICommHR, Justicia e Inclusión Social: los desafíos de la democracia en Guatemala, OEA/Ser.L/V/II.118 Doc. 5 rev. 1, 29 December 2003.

14


1.4 Enforced Disappearance of Children to Prevent the Opposition from Growing and to Obtain Profit from their Adoption Within the most common pattern of the practice, there is also a special variation: the enforced disappearance of children, either born during the captivity of their disappeared mothers or abducted separately.36 After their disappearance, several of these children were illegally adopted. Yet the existence of children of political opponents raises some questions for those practising enforced disappearance. Should the children disappear and be killed too, considering that, if they are not yet political opponents, they are likely become political opponents tomorrow? In principle, the logical answer should be in the affirmative. The children of the perpetrators of enforced disappearance should not be disturbed by the children of the disappeared people. However, consideration should also be given to the fact that children, especially the younger ones, could become a sort of tradable “object” and be given in adoption to couples who wanted a child and were perhaps willing to pay money to get one. The market has its own attractions and rules too and, if the children were given in adoption to reliable couples, they would not grow up as political opponents. The second purpose may contribute towards the achievement of the first. In the case of adoption, the rights to life and to the personal integrity of the children are not violated. Nonetheless, often there are violations of the prohibition of inhuman treatment (it is a form of psychological torture for the children), the right to privacy and family life, the right to dignity and honour, the right to a name, the right to be recognized as a person before the law, the right not to be subjected to the trafficking of human beings and, in general, the right to know the truth.37 Three Latin American States experienced a widespread practice of disappearances of children.

36

37

See, inter alia, Arzobispado de Guatemala, Oficina de Derechos Humanos, Hasta encontrarte – Niñez desaparecida por el conflicto armado interno en Guatemala, Ciudad de Guatemala, 2002, p. 60; O.H. Cucagna, “Cuestiones sobre la Historia – Desaparición de Niños”, in Cuentas Pendientes, No. 10, 1999, Buenos Aires, pp. 22–23. See infra 4.14.


1.4.A

15

Argentina

In Argentina,38 the phenomenon of the disappearance of sons and daughters of disappeared parents39 occurred in a manner of particular gravity. As noted by a local Court: At stake here are the rights and guarantees of the child, the right to a life of dignity, to ensure that someone defenceless not be stripped of his singularity as a person, the inalienable right of every person to know the truth about his own history and to grow up among his own relatives; and the right of the latter to keep their defenceless descendents within the bosom of the family.40

In the Final Report of the National Commission on the Disappearance of Persons (CONADEP), released in 1984,41 the matter of the disappearance of children was mentioned on several occasions: When a family which was to be chupada (slang term, literally meaning ‘sucked up’, ‘swallowed’) had children, the following methods were employed: 1. The children were left with neighbours to be looked after until a family relative arrived. 2. They were sent to children’s homes. These would hand them over to relatives or have them adopted. 3. The children might themselves be abducted and eventually adopted by a member of the armed forces. 4. They might be taken directly to the victim’s relatives, often in the same vehicle used to abduct their parents. 5. They might be left abandoned in the place from which the group had kidnapped their parents. 6. They could be taken to the secret detention centre, where they would witness the tortures inflicted on their parents, or might themselves be tortured in front of their parents. Many of these children are now among the lists of ’disappeared”.42 “Woe to those who abuse a child”, say the Scriptures. Never, perhaps, has this maxim become such a horrific reality as in the cases related in this chapter.

38

39 40

41 42

See also, HRC, Case Mónaco v. Argentina, Communication No. 400/1990, 3 April 1995, and IACHR, Case Reggiardo Tolosa v. Argentina (Provisional Measures), Resolutions of 19 November 1993 and 19 January 1994. See infra 2.2.G and 2.3.D. I. Moretti, I figli di Plaza de Mayo, Milano, 2002. English Translation by the HRC from a Lower Court ruling by the Federal Judge J.M. Ramos Padilla, 19 January 1988, in case No. 6681. CONADEP, Nunca Más – Never Again, Buenos Aires, 1984. See infra 1.8.A. Ibid., Part I, II “Abductions in the Presence of Children”.

16


When a child is forcibly removed from its legitimate family to be put in another, according to some ideological precept of what’s ‘best for the child’s welfare’, then this constitutes a perfidious usurpation of duty. The repressors who took the disappeared children from their homes, or who seized mothers on the point of giving birth, were making decisions about people’s lives in the same cold-blooded way that booty is distributed in war. Deprived of their identity and taken away from their parents, the disappeared children constitute, and will continue to constitute, a deep blemish on our society. In their case, the blows were aimed at the defenceless, the vulnerable and the innocent, and a new type of torment was conceived. This most painful situation was rapidly challenged by the extraordinarily indefatigable and discreet work begun by the Grandmothers of the Plaza de Mayo, which has so far resulted in the registration of 172 cases of children who disappeared, most of whom were seized at the time of their mother’s detention, or who were born in prison. Of these, twenty-five have been traced, but the remaining 147 have not, even though there are many leads, and investigations are under way which suggest that they may be found in the future. In certain cases the aggression shown towards children and adults was indiscriminate, and was directed against an entire family”.43

Children were targets as they belonged to the families of political opponents and, as such, were likely to become the political opponents of the future. According to the distorted logic of the perpetrators, there was a need to erase the present and future generations of political opponents: General Ramón Juan Alberto Camps, Chief of Police of the Province of Buenos Aires between 1976 and 1978, has explained that the leaders of the “dirty war” were afraid that the children of the disappeared would grow up hating the Argentine Army because of the fate of their parents. The anguish generated in the rest of the surviving family because of the absence of the disappeared would develop, after a few years, into a new generation of subversive or potentially subversive elements, thereby not permitting an effective end to the “dirty war”.44

Referring to the situation of Argentina between 1976 and 1983, the Interamerican Commission of Human Rights45 denounced the existence of a systematic practice of enforced disappearances of children. In some cases,

43 44 45

Ibid., Part II, “Children and Pregnant Women Who Disappeared”. Ibid., para. 1. A fundamental reference regarding the phenomenon of enforced disappearance of children is the Annual Report drafted by the ICommHR in 1988, OEA/Ser.L/V/II.74, 16 September 1988, Chapter V, “A Study about the Situation of Minor Children of Disappeared Persons Who Were Separated from their Parents and Who Are Claimed by Members of their Legitimate Families”.


17

they were abducted together with their parents or as a form of reprisal when the designated victim could not be found. In other cases, they were born in captivity, giving their mothers some more weeks to live before being killed. The fate of disappeared children was, in a very few cases, their restitution to their families of origin; more frequently, it could be their killing and the following concealment of their mortal remains or their illegal adoption. Children could be given in adoption to families that ignored their real origins (most of the time they were told the child had been abandoned) or to families that knew the real circumstances or even were themselves the perpetrators of the enforced disappearance of the true parents. The practice could also have international dimensions, as sometimes the adoptive families came from other countries or, having participated in the abduction of the minor, subsequently moved their residence abroad. As stated by the Interamerican Commission: The children victimized by this policy have a fundamental right to their identity as persons and to know that identity. They also have the right to recover the memory of their natural parents, and to know that those parents never abandoned them. They have the right to be in contact with their natural family so that they can nurture and provide continuity to that memory of affection. The Commission believes that judges must have discretion to determine an appropriate custody arrangement, and where applicable, to regularize adoptions if the best familial environment for the healthy growth of the child is, in fact, the adoptive home. Even in these cases, however, judges must respect the exercise of the natural relatives to visitation rights and contacts with the child. In cases where the abduction was committed by a person who participated in the forced disappearance of the true parents, or in their torture or execution, or who became an accomplice to such atrocities, the Commission believes that the child’s mental and physical health demands his immediate separation from that family group.46

The Interamerican Commission emphasized the importance of the creation of “genetic banks” where all available data regarding disappeared children and their relatives are collected to make it possible to establish the real identity of illegally adopted children. The analysis was concluded with recommendations to the governments of the States Parties to the Organization of American States (OAS) to prevent and suppress enforced disappearances of children. A number of measures should be taken into account whenever dealing with the issue:

46

Ibid., para. 5.

18


a) An increase in the penalties for the crimes of suppression and misrepresentation of civil status and abduction of minors, as well as the creation of a more serious form of the crime when it is committed under the protection of, or taking advantage of, the forced disappearance of the true parents; b) The review of procedural standards in each of the member states, in order to facilitate the introduction of scientific evidence to clarify these cases, to speed up processing of actions to establish familial relationships, and to allow magistrates to grant injunctive relief to prevent the flight of persons, the hiding of children or the destruction of evidence; and c) The review, and where necessary, the amendment, of substantive and procedural norms regarding adoption, in order to conform them to contemporary realities, thereby contributing to their increased observance in all countries.47

1.4.B

Guatemala

According to the Final Report by the CHC, in Guatemala the phenomenon of the disappearance of children48 reached particular intensity, especially between 1979 and 1986: out of the total 45,000 enforced disappearances reported, 11% concerned children. In 88% of cases of disappearances of children, State agents and members of the army were responsible. In 66% of the cases, the children who disappeared were less than 8 years old. Eighty percent of them were born and lived in remote rural areas and were of indigenous origin. Sixty percent of them were boys. Two reasons can explain why Guatemalan childhood was so badly affected by the internal armed conflict and in particular by enforced disappearances. First, in a context of extreme violence, where civilians were considered to be the normal targets of attacks, children, women and the elderly were the most vulnerable subjects and represented the “easiest” victims. Second, with regard to the racial hatred motivating the conflict, to cause the children of the various Mayan ethnic groups to disappear or to kill them was a way to prevent such groups from having a future by erasing the forthcoming generations. This second element fits with the conclusion of the CHC that the Guatemalan internal armed conflict resulted in genocide. Indeed, children were considered as objects: Hay bebés que están acostados bajo los palos, en todas partes murieron, hay bebés que están colgados en las ramas de los árboles . . . así están colgados

47 48

Ibid. See, inter alia, Hasta Encontrarte, supra note 36.


19

de las ramas de los árboles, y los bebés están vivos pero ya no los puedes recoger, dónde los vas a dejar, si no sabes donde está su mamá.49

Enforced disappearances of children were carried out in various ways. In some cases, the victims were captured in their villages and abducted together with their parents. In others, children were abducted from their houses when they were alone. Another instance was the abduction and subsequent disappearance of children who had survived after massacres carried out in their communities or villages. Sometimes children were captured when they were trying to escape from the attacks of the army or the paramilitary groups, either alone or together with their families. In others, mainly in urban areas, children were abducted from their houses in order to threaten or punish their relatives, who were considered to be members or supporters of the revolutionary groups. The CHC points out that also the guerrillas were responsible for the disappearance of a few children, usually 14 to 16-year-old boys, in order to use them as combatants, adding that these cases were rare and that enforced disappearance was not the guerrilla’s usual way to operate. According to the findings of the CHC, during the early stages the children who disappeared were usually killed and their bodies were cut into pieces and buried in mass graves. This was also the fate of the majority of disappeared children over 14 years old. At a later stage, children aged between 3 and 11 years old were given in illegal adoption, either domestically or, more frequently, in other countries. The soldiers and members of paramilitary groups who stole the children from their families and communities profited from the situation, selling them on the black market of illegal adoptions. It could be assumed that many of the children who disappeared during the internal armed conflict may be alive, albeit with a different identity and within a completely different cultural, religious and social context: almost a generation which sometimes

49

Arzobispado de Guatemala, Oficina de Derechos Humanos, Guatemala: Nunca más – Informe Proyecto Interdiocesano de Recuperación de la Memoria Histórica, Ciudad de Guatemala, 1998, Caso Colectivo 17. An unofficial translation by the authors follows: “There are children laying under the poles, they were dying everywhere, there are children who are hanging from the branches of the trees . . . so they are hanging from the branches of the trees, and the babies are alive but you cannot collect them. Where could you leave them if you do not know where their mother is?”.

20


also corresponds to ethnic groups lost forever, together with their millenary Mayan culture.50 1.4.C El Salvador The 12-year internal armed conflict in El Salvador was also characterized by the phenomenon of enforced disappearance of children.51 Unlike in Guatemala, in this case there were no ethnic implications. Hundreds of Salvadorian children were made disappear in order to punish or threaten their families, who were considered to be subversive or active members of guerrilla groups, and, in general, to spread terror within the country. Some of the children were killed and many were allegedly given in illegal adoptions abroad. Despite the widespread nature of this phenomenon, the Final Report of the Truth Commission for El Salvador does not mention enforced disappearance of children during the conflict.52 Nonetheless, subsequent investigations53 have shown that such a practice occurred with a frequency and diffusion that may be qualified as systematic. Most documented cases resulted in the illegal international adoption of the disappeared children in general aged between 3 and 11. It has been assumed that disappeared children between the ages of 12 and 18 were arbitrarily killed. Almost all of these acts were allegedly perpetrated by the regular army or by paramilitary groups. As of today, no domestic proceedings have been carried out to establish criminal responsibilities and to sanction those found to be guilty.

50 51

52 53

IACHR, Case Molina Theissen, supra note 32. IACHR, Case Hermanas Serrano Cruz, supra note 11; and judgment of 1 March 2005 (Merits), infra 2.3.Q. See infra 1.8.B. UNGWEID, E/CN.4/2003/70, 21 January 2003, paras. 98–102; Amnesty International, Informe El Salvador: ¿Dónde están las niñas y los niños de los desaparecidos?, 30 July 2003, AMR 29/004/2003/S; Asociación Pro-búsqueda de Niños y Niñas Desaparecidos, El día más esperado: buscando a los niños desaparecidos de El Salvador, San Salvador, 2001; Save the Children Suecia and Asociación Pro-búsqueda de Niños y Niñas Desaparecidos, La paz en construcción – Un estudio sobre la problemática de la niñez desaparecida por el conflicto armado en El Salvador, San Salvador, 2000; Asociación Pro-búsqueda de Niños y Niñas Desaparecidos, La problemática de niñas y niños desaparecidos como consecuencia del conflicto armado interno en El Salvador, San Salvador, 1999.


1.5

21

Enforced Disappearances Carried out by Paramilitary Groups

In certain countries, especially, but not only, in Colombia,54 enforced disappearances are today carried out mainly by paramilitary groups, acting with the connivance or tolerance of the State. To new offenders correspond new victims: besides the usual victims such as guerrillas and political opponents, paramilitary groups also target farmers and peasants, to pursue the private aim of taking possession of their land, and, more generally, the most vulnerable people, to achieve a sort of social cleansing. The situation which characterizes the Colombian internal conflict has been described in the 2005 Report of the United Nations Working Group on Enforced or Involuntary Disappearances as follows: For more than 40 years now, Colombia has been an arena of conflict where various actors have perpetrated all kinds of violence and gross human rights violations. The major actors have included: a plethora of armed revolutionary movements, organized as guerrilla forces; ultra-rightist paramilitary groups, or the so-called “self-defence units”; and, of course, the Colombian State itself, along with its coercive instruments comprising the regular Armed Forces, the National Police, and other security bodies among others. The conflict had originally centred on the matter of economic and political exclusion and access, the question of land and its distribution and issues of governance generally. The conflict was later complicated by interests in the cocoa industry and the development of new plantation farms for bananas and oil palm-producing trees, the illegal drug trade and exploitation of huge deposits of oil and other mineral resources found across the country’s major regions. Struggle for and control of flow of incomes or “rents” from these economies provided additional sources for financing of the armed conflict, as well as the motivations and strategies for continuing it. The interests involved ranged from the local, through the national, to the transnational.55

In the first period of the internal conflict, the State promoted the formation, training and arming of paramilitary groups, as a counter-force against armed revolutionary movements. Today the government denies any link

54

55

See, inter alia, HRC, Case Arévalo v. Colombia, Communication No. 181/1084, 3 November 1989; Case Bautista v. Colombia, Communication No. 563/1993, 27 October 1995; Case Coronel and others v. Colombia, Communication No. 778/1997, 29 November 2002; IACHR, Case 19 Comerciantes, supra nota 26; Case Masacre de Mapiripán v. Colombia, judgment of 15 September 2005, and Case Masacre de Pueblo Bello v. Colombia, judgment of 31 January 2006. See infra 2.2.C, 2.2.H, 2.2M, 2.3.R and 2.3.U. UNGWEID, E/CN.4/2006/56/Add.1, supra note 25, paras. 12–13.

22


with such groups and follows the official policy of treating both the guerrillas and the paramilitaries as “illegal armed groups”. Actually, as remarked by the Working Group, “the civilian population is kept hostage between the various fighting forces”.56 The paramilitary groups are held responsible for the majority of enforced disappearances: Various reports indicate that disappearances have not lessened, but continued and either remain constant, or may have increased since 1996. In the majority of cases reported to the Working Group it is paramilitaries, acting allegedly with the acquiescence of certain elements within the State military and security forces that have been singled out and held primarily responsible for the occurrences. Nor have disappearances stopped following the negotiations and the agreements for ceasefire and demobilization reached between the paramilitaries and the Government. During interviews with government officials, State involvement with or connivance in disappearances was frequently denied yet interviews with common citizens suffering from generalized violence in their day-to-day life provided eloquent and convincing testimony to direct State involvement in and complicity with enforced or involuntary disappearances in many parts of the country.57

The connivance of State authorities is more than likely: It has been said that the army is less involved in cases of disappearances. Nevertheless, reports and testimonies show that sometimes a soldier is also a paramilitary member, and he has only to change his armband to hide his official position. It has also been reported that certain factions of the army may use paramilitary groups to do a “dirty job” they could not do openly.58 In every meeting the Group held with representatives of civil society, the same facts were repeated. The perpetrators of enforced disappearances live among the population. But their membership in paramilitary groups is well known. They have social contacts with representatives of the authorities and of the armed forces. They have information about what members of the community are doing. In this situation, disappearances are used as warnings addressed to the population not to break the rules established by the paramilitaries and not to oppose the paramilitaries. And when a disappearance occurs, paramilitaries also know if someone is reporting these cases to the authorities or if the relatives are searching for the victims. Thus, disappearance has become an important means used by the paramilitaries of exercising social control. As noted above, few cases of disappearance have been successfully prosecuted.59

56 57 58 59

Ibid., Ibid., Ibid., Ibid.,

para. 16. para. 21. para. 56. para. 62. “The Criminal Code was amended to establish the crime of enforced


23

As a consequence of the involvement of paramilitary groups, victims among common people are increasing. Especially farmers are targeted to pursue the private aim of dispossessing them of their land: Two distinct periods can be observed. The first period starts with the first case received by the Working Group in 1973 and goes to the end of the 1990s. During that period, alleged perpetrators of disappearances were mainly the police, the military forces and the security services. During this period, the paramilitary forces were allegedly backing official forces in these operations, but sometimes acted on their own. The main targets of these disappearances were persons active in associations (in defence of human rights, in defence of farmers, the internally displaced and trade unions), people accused of being members or supporters of the guerrillas or left-wing parties and farmers. During the second period, starting around 1998 to the time of writing, the profiles of the perpetrators and the victims seem to have changed. Reports received indicate fewer cases in which official forces were directly involved and many more cases where paramilitary forces are directly responsible for the disappearances. While there are still many disappearances of persons accused of being “left-wing sympathizers”, the number of “common people”, especially farmers, seems to have increased.60 As for the rise in the number of farmers, peasants or rural people being abducted, it seems that the possession of land has become one of the objectives of the paramilitary forces. Various sources report that disappearances perpetrated against the civilian population in rural areas may be aimed at causing terror and displacement, and the unlawful appropriation of land and other property. This coincides with the information received stating that paramilitary groups are gaining more and more influence in the Colombian economy. 61

In the case of enforced disappearances and other gross violations of human rights carried out by paramilitary groups, the objective of spreading terror is accompanied by actions of “social cleansing” affecting the most vulnerable social groups:

60 61

disappearance as an autonomous crime in 2000. Yet, based on information provided by the Office of the Prosecutor General, only 84 investigations have been opened since 2001 implicating government officials (i.e. National Army, National Navy and National Police). However 390 complaints of enforced disappearances have been received since 2001. Out of those 390 cases, 176 relate to perpetrators who are not reported to belong to a government entity. The same Report indicates that only 28 persons have been sanctioned in the first stage of the criminal procedure and 16 in the second stage. Furthermore, 25 persons have been acquitted at the first procedural stage and 7 in the second” (ibid., para. 40). Ibid., para. 55. Ibid., para. 56.

24


Another aspect of disappearances that has been underreported in the past and continues at the present time relates to the way in which acts of disappearance are perpetrated in conjunction with other gross violations, with targets drawn from among the most vulnerable groups in society. Numerous testimonies were received concerning these phenomena. The most common examples brought to our notice were: disappearances, combined with “social cleansing” (said to have been a marked feature of the practice in the city of Barrancabermeja for much of the late 1980s and throughout the 1990s, with the urban poor, the unemployed and the so-called “undesirables”, including prostitutes, petty thieves, vagabonds, gamblers and homosexuals as the victims); disappearances, subsequently combined with executions (the victims being drawn mostly from among radical political party leaders or members and trade unionists suspected of collaborating with the guerrilla groups); disappearances, combined with enforced displacement (taking place often mostly in rural areas, the objective being to dispossess victims of their land and properties); disappearances, combined with rape and other forms of sexual violence (with women and girls as victims); disappearances, combined with forced conscription recruitment (directed at children). There seems to have been an increase in all of these practices since the Working Group’s first mission to Colombia in 1988.62

The link established between the State and paramilitary groups explains why the fight against enforced disappearances becomes particularly difficult: The general factors accounting for the underreporting of disappearances are similar in Colombia as elsewhere, and include the factors of poverty, illiteracy, submissiveness to fatalism, fear of reprisals, weaknesses in the administration of justice, ineffectual reporting channels and mechanisms, deeply rooted systems of impunity, and a culture of silence. To these generalized factors, explaining why so many acts of disappearance are often left underreported and undenounced must be added other, more specific, factors obviously critical to the Colombian situation: the collaborative links long established and perceived to subsist between the Colombian State or State Authorities and paramilitary groups; the pervasive atmosphere of fear, intimidation, and terror, under which relatives of victims, their lawyers, witnesses to disappearances or their families, members of organizations of relatives and other NGOs or individuals live, particularly in those areas controlled or dominated by the paramilitaries; the profound lack of trust in the judicial system.63

62 63

Ibid., para. 59. Ibid., para. 60.


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1.6 Enforced Disappearance of People from Whom Information Relevant for Anti-Terrorism Purposes Can Be Extracted 1.6.A

The “Not-in-My-Backyard” Doctrine

In recent years there has been a further variation in the phenomenon of enforced disappearance. In the context of the present global “War on Terror”, enforced disappearances operated at the transnational level have become a means by which information relevant for security purposes can be extracted. Contrary to what happens in the traditional practice of enforced disappearance, here the fate and the whereabouts of some of the victims may be disclosed after a certain period of time. However, until that moment, the victims can be qualified as disappeared people. This variation of the practice requires some explanations.64 In almost all countries the legislation in force prohibits the State from subjecting people to torture or other cruel, inhuman or degrading treatment. It also provides that all detained persons are entitled to challenge the legality of their detention before a judicial body. But all this may prevent the intelligence or other State services from extracting information that they deem relevant for security purposes. As it has been remarked: Information obtained by torture may be unreliable. But all too often it will be reliable and of value to the torturer and his masters. That is why torturers ply their trade. Sadly, the Gestapo rolled up resistance networks and wiped out their members on the basis of information extracted under torture. Hence operatives sent to occupied countries were given suicide pills to prevent them from succumbing to torture and revealing valuable information about their mission and their contacts. In short, the torturer is abhorred as a hostis humani generis not because the information he produces may be unreliable but because of the barbaric means he uses to extract it.65

A way to circumvent the obstacle is to claim that the legal provisions against torture or other cruel, inhuman or degrading treatment and, more generally,

64

65

In para. 1.6 rather detailed considerations are made due to the fact that enforced disappearances related to the “War on Terror” have a peculiar character, although they represent a limited number within the whole dimension of the practice. Judgment of 8 December 2005 by the United Kingdom House of Lords in the case A. and others v. Secretary of State for the Home Department, opinion by Lord Rodger of Earlsferry, para. 130, in ILM, 2006, p. 503.

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domestic and international provisions on human rights apply only within the borders of the country (so-called “not in my backyard” doctrine). It follows that what cannot be done domestically can be done abroad. If people who are in the country cannot be tortured or subjected to other cruel, inhuman or degrading treatment, foreign people who are abroad can. If people who are in the country cannot be caused to disappear, foreign people who are abroad can. What is important, for the sake of legality, is that all the course of the conduct that is domestically prohibited takes place outside the national territory and does not affect a national. There is no doubt that such a theory is a mockery of any kind of legality and an insult to all those who believe in the rule of law. The core human rights provisions include, inter alia, the prohibition of torture and other cruel, inhuman or degrading treatment, the prohibition of enforced disappearance, especially where it is used as a means to facilitate such abhorred treatments, as well as the right to judicial protection. These provisions can never be derogated, even in cases of public emergencies or armed conflicts threatening the life of a nation. They must be fully complied with by all State agents, wherever they happen to act. State agents acting abroad are not less bound to abide by core human rights provisions. Is there any substantive difference if State torturers are instructed to ply their trade only abroad and not at home and if the victim is a foreigner rather than a national? The logical development of the not-in-my-backyard doctrine follows a simple path: the less the national involvement, the better. The ideal situation occurs if information is extracted from a foreign suspect in a foreign country by foreign agents; and then if the information, purged of any detail on how it has been obtained, independently reaches the national intelligence or other interested State security services. However, as such an ideal situation is not likely to occur in the real world, some sort of national involvement becomes inevitable. To limit it, two kinds of practices have been invented. The first is based on the forced transfer of the suspect from abroad to a sui generis State, that is the “State of the President of the United States”; the second is based on the forced transfer of the suspect from abroad to abroad, that is the practice of the so-called extraordinary renditions. 1.6.B From Abroad to the “State of the President of the United States” (Guantanamo Bay) An initial attempt to limit national involvement is based on the possibility of finding a place on the earth where State agents may extract information without being subject to the jurisdiction of another State and, at the same


27

time, without being within the sovereignty of the State to which they belong. If places subject to such a regime of legal vacuum exist, someone could fill the gap and act as legislator, executor and judge at the same time, without any interference from the judiciary. Is a ship flying the national flag on the high seas such a place? The possibility might be explored, even though the results do not seem promising as courts usually subject to their jurisdiction events occurring on board ships flying the national flag. Is a territory put in the unusual situation of being leased by a State to another State such a place? Indeed, is Guantanamo Bay such a place? Guantanamo Bay is a territory of 45 square miles of land and water along the southeast coast of Cuba. It was leased as a coaling and naval station by Cuba to the United States under an agreement concluded on 16–23 February 1903. According to a subsequent treaty signed by these two countries on 29 May 1934 the lease would remain in effect “so long as the United States of America shall not abandon the (. . .) naval station of Guantanamo”. No such abandonment has occurred so far. According to Article III of the 1903 agreement: While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas.

As it can be seen, the 1903 agreement provides some basis for a legal technicality, namely that “sovereignty” is something different from “complete jurisdiction and control”. Today the words Guantanamo Bay indirectly recall the tragic events and loss of human life that occurred on 11 September 2001 in the United States as a consequence of terrorist attacks: [. . .] On September 11, 2001, the United States was the victim of massive and brutal terrorist attacks carried out by 19 Al Qaida suicide attackers who hijacked and crashed four U.S. commercial jets with passengers on board, two into the World Trade Center towers in New York City, one into the Pentagon near Washington, D.C., and a fourth into a field in Shanksville, Pennsylvania, leaving more than 3000 innocent individuals dead or missing.66

66

Reply of the United States to the Report of the Five United Nations Commission on Human Rights Special Rapporteurs on Detainees in Guantanamo Bay, Cuba, in ILM, 2006, p. 749. These were “the worst casualties experienced in the United States in a single day since

28


After the attack, the United States Congress passed Public Law No. 107–40 of 2001, providing that: The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harboured such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons (Sect. 2, a).67

On 13 November 2001, the President of the United States issued a Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism. The order applies to any individual who is not a United States citizen with respect to whom the President determines from time to time in writing that there is reason to believe that he is a member of the organization al Qaeda or is otherwise involved in acts of terrorism having the aim of causing injury or adverse effects on the United States, its citizens, national security, foreign policy or economy.68 Having determined that “an extraordinary emergency exists for national defence purposes” (Sect. 1, g), the President stated in the order the policy that the Secretary of Defence shall take all necessary measures to ensure that the individuals subject to the order are detained “at an appropriate location designated by the Secretary of Defence outside or within the United States” (Sect. 3, a); that they “shall, when tried, be tried by military commissions” (Sect. 4, a); that it was “not practicable to apply in military commissions (. . .) the principle of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts” (Sect. 1, f ). In short, under the order the President of the United States claimed to act, through the Department of Defence, as legislator, judge and executor at the same time,69 at the exclusion of any control by any court of justice: With respect to any individual subject to this order – (1) military tribunals shall have exclusive jurisdiction with respect to offences by the individual; and

67 68 69

the American Civil War” (S.D. Murphy, “Contemporary Practice of the United States Relating to International Law”, in AJIL, 2002, p. 237). Ibid., p. 242. See, for more details, Sect. 2 of the Order. The penalties included life imprisonment and death (Sect. 4, a).


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(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal (Sect. 7, b).

The American naval station at Guantanamo Bay was chosen by the President of the United States as an appropriate location for detaining individuals subject to the 2001 Military Order. The procedures for trials before the military tribunals were enacted by the United States Department of Defence under Military Commission Order No. 1 of 21 March 2002.70 They differ greatly from the procedures applying before ordinary criminal courts or ordinary martial courts. They are mostly inspired by the desire to maintain secrecy about the trial and provide for many restrictions on the right of the accused to defend himself. There is little need to elaborate hereunder on the content of such procedural rules.71 It is sufficient to stress two aspects of the unusual situation. First, the President of the United States is under no obligation to try the individuals subject to the order. They are tried “when tried”. If not, they are simply detained indefinitely or until the President of the United States deems it appropriate. Officials of the United States Department of Defence have asserted that, even if an individual subject to the order were to be tried and acquitted, “he might still be kept in custody indefinitely as a threat to U.S. national security”.72 The detainees are not entitled to challenge the legality of their detention before a judicial body. This means that people, provided that they are not United States citizens, could be caused to disappear from a country different from the United States, taken to a place “outside or within the United States” (for instance, the American naval station at Guantanamo

70 71

72

ILM, 2002, p. 725. The order was amended on 31 August 2005. For instance, the accused and his counsel may be precluded from learning what evidence was presented during the parts of the proceedings to be held in closed sessions; in this case, another counsel, that is an appointed military defence counsel, is privy to the closed sessions but may be prohibited from revealing to the accused what took place therein; any kind of evidence is admissible, including testimonial hearsay and evidence obtained through coercion. In practice, the accused may be convicted on the basis of evidence that he has not seen or heard. He is excluded from his own trial. S.D. Murphy, “Contemporary Practice of the United States Relating to International Law”, in AJIL, 2002, p. 733.

30


Bay or elsewhere) and secretly detained indefinitely, without any information being provided to the outside world.73 Second, the procedures established by the Department of Defence do not explicitly exclude statements extracted under torture or other cruel, inhuman or degrading treatment. It is true that, under Sect. 3 of the 2001 Military Order, the individuals subject to the order were to be “treated humanely” and “afforded adequate food, drinking water, shelter, clothing, and medical treatment”. But many doubts can be raised on how the individuals in question were effectively treated. Some examples may be cited here in this regard. On 1 August 2002, the Assistant Attorney General of the United States, Mr. Bybee, sent a memorandum to the White House counsel, Mr. Gonzales.74 In the memorandum Mr. Bybee expresses his views that, with regard to the conducting of interrogation outside the United States, the prohibition of torture applies only to acts of extreme nature specifically intended to inflict severe pain or suffering, such as organ failure, impairment of bodily function or even death, as regards physical pain, or psychological harm of significant duration lasting for months or even years, as regards mental pain;75 that certain acts, such as some sensory deprivation techniques, may be cruel, inhuman or degrading, but still not produce pain and suffering of the requisite intensity to fall within the prohibition of torture; that, while the United States is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 1984), the President of the United States, as Commander-in-Chief, has the exclusive constitutional authority to order interrogation of “enemy combatants” to gain information for national security and defence purpose without being bound by the above mentioned convention.76 73

74

75

76

In this context, “outside world” means someone who is not under the control of the President of the United States or the Secretary of Defence. S.D. Murphy, “Contemporary Practice of the United States Relating to International Law”, in AJIL, 2004, p. 824. Moreover, according to Mr. Bybee, a defendant, even if he inflicted acts that constitute torture, could rely on the defence that he acted in good faith, believing that his conduct did not amount to torture. According to Mr. Bybee, those who aid the President of the United States in exercising his exclusive constitutional authority to disregard the 1984 Convention against Torture cannot be punished. Even though Mr. Bybee does not discuss the issue, it seems to be implied that the President of the United States cannot be punished either if he decides to exercise personally such exclusive constitutional authority by torturing himself the enemy combatants.


31

The “individuals subject to the 2001 Military Order” were subsequently qualified in the official American statements as “enemy combatants”. This is a poorly conceived legal technicality, intended to prevent the detainees from being treated either as suspects accused of ordinary crimes, who would be entitled to benefit from the ordinary rules of criminal law and procedure, or as prisoners of war, who would be entitled to benefit from the status granted to such people by the treaties in force and generally accepted rules of international law. Instead, enemy combatants are entitled to nothing except what is granted by the President of the United States. It would be too lengthy to dwell upon all the documents issued by a number of United States authorities, taking different positions on what kind of interrogation techniques should be allowed in Guantanamo Bay to tackle the “tenacious resistance by some detainees to existing interrogation methods”, considering that “the current guidelines for interrogation procedures (. . .) limit the ability of interrogators to counter advanced resistance”. For instance, Mr. Bybee’s views are further supported by those of Ms. Beaver, Staff Judge Advocate. In a memorandum issued on 11 October 2002, she concluded that none of the following three categories of interrogation techniques violated United States or international law: Techniques in the first category would include yelling at the detainee, deceiving the detainee, and having the interrogator identify himself as from a country with a reputation for harsh treatment of detainees. Techniques in the second category would include the use of stress positions for a period of four hours; solitary confinement for up to thirty days; deprivation of light and auditory stimuli; interrogation lasting twenty-four hours; removal of clothing (that is, nudity); and using detainees individual phobias (such as fear of dogs) to induce stress. The third category included four techniques: making the detainee believe death or severe pain was imminent for him or his family; exposure to cold weather or water; use of a wet towel and dripping water to induce the misperception of suffocation; and mild non-injurious physical contact, such as grabbing, poking in the chest with the finger, and light pushing.77

While some other United States officials expressed doubts about the legality of some of the interrogation methods, the fact remains that for an excessively long period complete confusion reigned about what was permissible in terms of “counter-resistance techniques”. As stated in the report submitted in 2006 to the United Nations Commission on Human Rights by five rapporteurs 77

S.D. Murphy, “Contemporary Practice of the United States Relating to International Law”, in AJIL, 2004, p. 826.

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(Ms. Zerrougui, Mr. Despuoy, Mr. Nowak, Ms. Jahangir and Mr. Hunt) on the situation of detainees at Guantanamo Bay: Beginning in 2001, the Administration of the United States, while officially reiterating its adherence to the absolute prohibition of torture, has put in place a number of policies that effectively weaken the prohibition.78

The outcome of too many uncertainties is not difficult to imagine. It was synthetically pointed out in an intervention made by Sen. McCain on 5 October 2005 during a debate with the American Senate: We have so many differing legal standards and loopholes that our lawyers and generals are confused. Just imagine our troops serving in prison in the field.79

Seen from the point of view of the enemy combatants, the behaviour of the “troops serving in prison in the field” was the following: If you said you didn’t want to go to interrogation you would be forcibly taken out of the cell by the Initial Reaction Force team. You would be pepper-sprayed in the face which would knock you to the floor as you couldn’t breathe or see and your eyes would be subject to burning pain. Five of them would come in with a shield and smack you and knock you down and jump on you, hold you down and put the chain on you. And then you would be taken outside where there would already be a person with clippers who would forcibly shave your hair and beard.80 What were the measures most difficult to cope with in your view? – Sleep deprivation. They were forcing us to change the cells, the boxes we were held in, for every 15 minutes. And that was going on for three to four months. Every 15 minutes we were supposed to change. No sleep, nothing. So sleep deprivation.81 They are being force-fed through the nose. The force-feeding happens in an abusive fashion as the tubes are rammed up their noses, then taken out again and rammed in again until they bleed. For a while tubes were used that were thicker than a finger because the smaller tubes did not provide the detainees with enough food. The tubes caused the detainees to gag and often they would vomit blood. The force feeding happens twice daily with the tubes inserted

78

79 80 81

United Nations, Commission on Human Rights, Situation of Detainees at Guantanamo Bay, E/CN.4/2006/120, 15 February 2006 (reproduced also in ILM, 2006, p. 716), para. 46. Ibid., para. 48. Ibid., note 76. Ibid., note 59.


33

and removed every time. Not all the detainees on hunger strike are in hospital but a number of them are in their cells, where a nurse comes and inserts the tubes there.82

The above mentioned report to the Commission on Human Rights concluded, inter alia, that: Attempts by the United States Administration to redefine ‘torture’ in the framework of the struggle against terrorism in order to allow certain interrogation techniques that would not be permitted under the internationally accepted definition of torture are of utmost concern. The confusion with regard to authorized and unauthorized interrogation techniques over the last year is particularly alarming. The interrogation techniques authorized by the Department of Defence, particularly if used simultaneously, amount to degrading treatment in violation of Article 7 of ICCPR [= International Covenant on Civil and Political Rights] and Article 16 of the Convention against Torture. If in individual cases, which were described in interviews, the victim experienced severe pain or suffering, these acts amounted to torture as defined in Article 1 of the Convention. [. . .] The excessive violence used in many cases during transportation, in operations by the Initial Reaction Forces and force-feeding of detainees on hunger strike must be assessed as amounting to torture as defined in Article 1 of the Convention against Torture.83

In a reply presented on 10 March 2006, the United States expressed the view that the report to the Commission on Human Rights collapses under the weight of many factual and legal conclusions.84 In particular, the reply pointed out that torture is prohibited under United States statute and treaties in force for the country, that people who commit torture are investigated, prosecuted and punished,85 that the Detainee Treatment Act, signed by the

82 83 84 85

Ibid., note 73. Ibid., paras. 86–88. ILM, 2006, p. 743. In a response of 21 October 2005 to the inquiry made by the rapporteurs of the Commission on Human Rights (ILM, 2006, p. 769), the United States pointed out that all the investigations made on alleged acts of abuse at Guantanamo Bay were independent. However, such investigations were all carried out by members of the United States Administration of Defence and no case was brought before judicial courts. According to the United States response, ten cases of misconduct were investigated, with the adoption of disciplinary sanctions in nine of them (admonishment, reprimands, reduction in grade or removal from duties, as the case may be). The most unexpected of the “incidents of misconduct” reported by the United States is the following: “A female interrogator

34


President of the United States on 30 December 2005, codifies worldwide the United States policy against cruel, inhuman or degrading treatment,86 that the above mentioned Bybee memorandum was withdrawn on 22 June 2004.87 However, the reply does not specify why this egregious memorandum was withdrawn, why it was withdrawn only after almost two years from the day it was issued and what happened in the period when the memorandum was still waiting to be withdrawn. Nor is there any indication as to whether the new legislation puts an end to the President’s assertion of his right not to comply with the rules against torture.88 The reply by the United States is most unconvincing where it states that the Covenant on Civil and Political Rights “does not cover operations in Guantanamo, which is not within the U.S. territory”.89 The legal technicality contained in the already mentioned 1903 agreement between Cuba and the United States on Guantanamo Bay was based on the assumption that “sovereignty”, which remained with Cuba, is something different from “complete jurisdiction and control”, which were provisionally granted to

86

87

88

89

inappropriately touched a detainee on April 17, 2003 by running her fingers through the detainee’s hair, and made sexually suggestive comments and body movements, including sitting on the detainee’s lap, during an interrogation. The female interrogator received a written admonishment and additional training” (ibid., p. 781). The United States does not specify what was the additional training given to the female interrogator. Was she instructed to relinquish her method of interrogation, which in fact does not fit in any of the already mentioned techniques of interrogation approved by Staff Judge Advocate Ms. Beaver, and resort to “a wet towel and dripping water to induce the misperception of suffocation”, that instead does? In fact the act was adopted despite strong resistance by the government: “The U.S. administration has opposed the legislation as an unwarranted and unworkable limitation on the president’s ability to defend the country (. . .). Vice President Richard Cheney and his staff have been active in opposing the legislation and have worked to exempt the Central Intelligence Agency from its coverage, voicing particular criticism of the concept of ‘cruel and inhuman treatment’ as subjective and unrealistic” (J.R. Crook, “Contemporary Practice of the United States Relating to International Law”, in AJIL, 2006, p. 232). On the withdrawal of the memorandum see J.R. Crook, “Contemporary Practice of the United States Relating to International Law”, in AJIL, 2005, p. 479. At the moment of the signature of the new legislation, the President of the United States issued two signing statements. “Some interpret the first statement as the president’s assertion of the right not to comply with the legislation insofar as he thought it to conflict with the commander-in-chief power” (J.R. Crook, “Contemporary Practice of the United States Relating to International Law”, in AJIL, 2006, p. 456). ILM, 2006, p. 743.


35

the United States. It had the evident aim of ensuring the automatic return to Cuba of the territory leased, once the lease would be terminated. Now, taken out of its proper context, the subtle distinction between “sovereignty” and “complete jurisdiction and control” becomes a poorly conceived legal technicality, whose purpose is to place the individuals subject to the 2001 Military Order in a legal vacuum. The United States reply does not specify in whose territory Guantanamo Bay is located, if not in the territory of the United States. Is it in the territory of Cuba and, if so, is Cuba responsible for the treatment of the “individuals subject to the 2001 Military Order” who are detained there? Is it a terra nullius, like the unclaimed Antarctic sector? Yet the most likely response (though it has not been provided by the United States) would be that Guantanamo Bay is located in a State newly established in 2001, that is “the State of the President of the United States”, where the President can act as sole legislator, judge and executor.90 The assumption that legal devices may prevail over basic human rights was fully rejected by the United States Court of Appeals for the Ninth Circuit in the decision rendered on 18 December 2003 in the case Falen Gherebi v. George Walker Bush and Donald H. Rumsfeld. As regards the question of sovereignty, the Court of Appeals found that:

90

Previously, the fact that Guantanamo Bay is outside the sovereign territory of the United States, being instead within the sovereignty of Cuba, was upheld in a decision rendered on 21 February 2002 by the United States District Court, Central District of California, in the case Coalition of Clergy et al. v. George Walker Bush et al., to dismiss a petition requesting the United States government to identify by full name and country of domicile any person held at Guantanamo Bay, to reveal the true reasons for detention and to produce the detainees at a hearing in the court. The District Court found that the Guantanamo Bay detainees “(. . .) are aliens; they were enemy combatants; they were captured in combat; they were abroad when captured; they are abroad now; since their capture, they have been under the control of only the military; they have not set foot on American soil; and there are no legal or judicial precedents entitling them to pursue a writ of habeas corpus in an American civilian court. Moreover, there are sound practical reasons, such as legitimate security concerns, that make it unwise for this or any court to take the unprecedented step of conferring such a right on these detainees” (ILM, 2002, p. 1272). The proposition that “Cuba not the United States has sovereignty over Guantanamo Bay” is repeated, to dismiss for lack of jurisdiction petitions for habeas corpus filed by detainees, in the decision rendered on 11 March 2003 by the United States Court of Appeals for the District of Columbia Circuit in the case Khaled A.F. Odah et al. v. United States of America et al. (ILM, 2003, p. 414).

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During the unlimited and potentially permanent period of U.S. possession and control over Guantanamo, the United States possesses and exercises all of the attributes of sovereignty while Cuba retains only a residual or reversionary sovereignty interest, contingent on the possible future United States’ decision to surrender its complete jurisdiction and control.91 Whatever question may have existed about our sovereignty previously, our insistence on our right to use the territory for any and all purposes we desire, and our refusal to recognize specific limitation on our rights provided in the Lease and continuing Treaty, removes any doubt that our sovereignty over Guantanamo is complete.92 If ‘sovereignty’ is ‘the supreme, absolute and uncontrollable power by which any independent state is governed’, ‘the power to do everything in a state without accountability’, or ‘freedom from external control: autonomy, independence’, it would appear that there is no stronger example of the United States’ exercise of ‘supreme power’, or the adverse nature of its occupying power, than this country’s purposeful actions contrary to the terms of the lease and over the vigorous objections of a powerless ‘lessor’. [. . .] Any honest assessment of the nature of United States’ authority and control in Guantanamo today allows only one conclusion: the U.S. exercises all of the basic attributes of full territorial sovereignty.93

The Court of Appeals was well prepared to examine the substantive issues in question: The captured individuals were labelled ‘enemy combatants’. Now, for almost two years, the United States has subjected over six hundred of these captives to indefinite detention, yet has failed to afford them any means to challenge their confinement, to object to the failure to recognize them as prisoners of war, to consult with legal counsel, or even to advance claims of mistaken capture or identity. [. . .] No military tribunal has actually been convened. Nor has a single Guantanamo detainee been given the opportunity to consult an attorney, had formal charges filed against him, or been permitted to contest the basis of detention in any way. Moreover, top U.S. officials [. . .] have made it clear that the detainees may be held in their present circumstances until this country’s campaign against terrorism ends. The administration has, understandably, given no indication whether that event will take place in a matter of months, or decades, if ever.94

91 92 93

94

ILM, 2004, p. 386. Ibid., p. 388. Ibid., p. 389. As remarked in the decision, while bound by the 1903 Agreement to use Guantanamo Bay as a naval base and coaling station, the United States has used it for whatever purpose it deemed desirable. Cuba protested these actions and for years has refused to cash the United States’ rent checks. Ibid., p. 382.


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We recognize that the process due ‘enemy combatants’ habeas petitioners may vary with the circumstances and are fully aware of the unprecedented challenges that affect United States’ national security interests today, and we share the desire of all Americans to ensure that the Executive enjoys the necessary powers and flexibility to prevent future terrorist attacks. However, even in times of national emergency – indeed, particularly in such times, it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike. Here, we simply cannot accept the government’s position that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement. We hold that no lawful policy or precedent supports such a counter-intuitive and undemocratic procedure [. . .]. In our view, the government’s position is inconsistent with fundamental tenets of American jurisprudence and raises most serious concerns under international law.95

This exemplary decision goes straight to the point. Nowhere in the world can the President of the United States be at the same time legislator, judge and executor or, to use the evocative words of the Court of Appeals, run roughshod over the rights of citizens and aliens alike: Under the government’s theory, it is free to imprison Gherebi indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with Gherebi and these detainees as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting him to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged. Indeed, at oral argument, the government advised us that its position would be the same even if the claims were it was engaging in acts of torture or that it was summarily executing the detainees. To our knowledge, prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition. Accordingly, we view Guantanamo as unique not only because the United States’ territorial relationship with the Base is without parallel today, but also because it is the first time that the government has announced such an extraordinary set of principles – a position so extreme that it raises the gravest concerns under both American and international law.96

On 28 June 2004 the United States Supreme Court, in deciding the cases Shafiq Rasul et al. v. George W. Bush, President of the United States, et al. and

95 96

Ibid., p. 383. Ibid., p. 391.

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Fawzi Khalid Abdullah Fahad al Odah et al. v. United States et al. answered in the affirmative the question “whether the United States federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing”.97 Nevertheless, the United States is again relying on the extraterritoriality of Guantanamo Bay in the already mentioned 2006 reply to the report to the United Nations Commission on Human Rights on the Situation of Detainees at Guantanamo Bay, to reach the conclusion that the Covenant on Civil and Political Rights does not apply in the specific case.98 Again, this technicality is put forward against the evident proposition that a State Party “must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party”.99 As repeated in the concluding observations made on 27 July 2006 by the Human Rights Committee on the report submitted by the United States under Article 40 of the Covenant: The State Party should review its approach and interpret the Covenant in good faith in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose. It should in particular (a) acknowledge the applicability of the Covenant in respect of individuals under its jurisdiction and outside its territory, as well as in times of war; (b) take positive steps where necessary to ensure the full implementation of all Covenant rights; and (c) give good faith consideration to the understanding of the Covenant provided by the Committee pursuant to its mandate.100

Other relevant events in the situation of the Guantanamo Bay detainees cannot be discussed in detail here. On 7 July 2004, a few days after the abovementioned 2004 Supreme Court’s decision, the United States Department of Defence issued an order establishing Combatant Status Review

97 98

99

100

ILM, 2004, p. 1212. The explanation is based, in its renewed version, on the fact that Article 2.1 of the Covenant provides that each State Party “undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction” the rights recognized in it. As stated in HRC, General Comment No. 31 [80], CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 3, and as pointed out in the 2006 report on the Situation of Detainees at Guantanamo Bay, supra note 78, para. 11. Para. 10 of the concluding observations.


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Tribunals, mandated to ascertain whether each of the Guantanamo detainees qualified as an “enemy combatant”. However, also these military tribunals cannot qualify as judicial institutions, as they do not provide any fair and public hearing before an independent and impartial judicial body. On 29 June 2006 the United States Supreme Court, in deciding the case Hamdan v. Rumsfeld, Secretary of Defence, et al., held that Military Commission Order No. 1 of 2002 violates both the United States Uniform Code of Military Justice and Article 3 common to the Four 1949 Geneva Conventions on the law of war which prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”.101 However, the effects of this decision seem frustrated by the recent 2006 Military Commissions Act (Public Law 309–366 of 17 October 2006), that provides that “no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination” (Sec. 7.e.1).102 As regards the issue of enforced disappearance, two relevant elements can be drawn from the 2006 report on the Situation of Detainees at Guantanamo Bay and the United States reply. First, the United States takes the position that incommunicado detention is not prohibited by the Convention against Torture: [. . .] The Report states that all incommunicado detention is prohibited under the Convention against Torture. This is wrong: there is no binding legal authority for this proposition. The Report persistently seeks to impose obligations

101

102

In particular, the Court pointed out that the order dispensed “with the principles, articulated in Article 75 [of the Code] and indisputably part of the customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him” (opinion of the Court delivered by Justice Stevens, in ILM, 2006, p. 1155). ILM, 2006, p. 1278. The Act also provides that “no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination” (Sec. 7.e.2).

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on the United States that were explicitly rejected or otherwise could not be achieved in negotiating the terms of the treaty.103

Yet, incommunicado detention is something very close to enforced disappearance. Under Sect. 2, c, of the 2001 Military Order: It is further the policy of the United States that the Secretary of Defence shall take all necessary measures to ensure that any individual subject to this order who is not already under the control of the Secretary of Defence but who is under the control of any officer or agent of the United States or any State shall, upon delivery of a copy of such written determination [= the determination by the President of the United States that the individual is subject to the order] to such officer or agent, forthwith be placed under the control of the Secretary of Defence.

This provision may explain why only occasionally have the names of some of the Guantanamo Bay detainees, for instance those who have been involved in the rare cases that have reached judicial courts, been publicly disclosed. But what about the others? Who knew about their arrest and transfer to Guantanamo Bay? Do they have relatives who have been informed? In the request made to the United States on 28 October 2005 by the Interamerican Commission on Human Rights of reiteration and further amplification of precautionary measures for the detainees in Guantanamo Bay, the petitioner states “that there are still 225 detainees who have been completely denied any right to access counsel because no one except the government knows who they are”.104 Only in April 2006 did the United States Department of Defence, as the consequence of an order issued on 4 January 2006 by the District Court, Southern District of New York (case Associated Press v. United States Department of Defence), publish, for the first time, a list of 558 Guantanamo Bay detainees. The order was based on the Freedom of Information Act in a case where the plaintiff, a press agency, sought information about the military proceedings relating to the Guantanamo Bay detainees: In response, the Department of Defence produced redacted copies of the transcripts and related documents, removing the names of the detainees and certain other ‘identifying information’, such as internment serial numbers, names

103

104

ILM, 2006, p. 756. Already in 1994 the HRC expressed the view that “being subject to prolonged incommunicado detention in an unknown location constitutes torture and cruel and inhuman treatment” (El-Megreisi v. Libyan Arab Jamahiriya, Communication No 440/1990, 23 March 1994. See infra 2.2.D). ILM, 2006, p. 675.


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and home locals of the detainees and their families, information tending to reveal the nationalities or countries of origin of the detainees, and names of other persons identified or otherwise referenced by the detainees. [. . .] No claim was made, then or thereafter, that these redactions were prompted by considerations of national security or the like. Rather, the sole basis given for the redactions was so-called ‘Exemption 6’, which exempts from disclosure ‘personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy’.

The District Court rejected the assumption that the United States Department of Defence could act as a fully reliable defender of the privacy of the Guantanamo Bay detainees.105 However, no details have been given by the United States about people previously detained; and no outside body could verify whether the 2006 list is exhaustive. Second, the report on the situation of detainees at Guantanamo Bay makes the following remark about the real purpose of deprivation of liberty: The interviews conducted [. . .] with detainees corroborated allegations that the purpose of the detention of most of the detainees is not to bring criminal charges against them but to extract information from them on other terrorism suspects. Indeed, four years after the establishment of the detention facility, none of the inmates has been tried and the proceedings of only nine persons detained at Guantanamo Bay are close to the trial stage.106

This assumption is strongly denied by the United States: Detention is not an act of punishment but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States. These are the long-standing, applicable rules of the law of war.107

However, such a denial is not fully convincing. The purpose of preventing the captured enemies from continuing to take up arms against the captor State is served by detaining them as prisoners of war, entitled to the status provided by the relevant provisions of domestic and international law, including the right of not being subject to interrogation. But the Guantanamo Bay detainees have not been granted the status of prisoners of war. They have been

105

106 107

The District Court directed the Department of Defence to ask (by means of a form) each detainee whether he wished his identifying information to be released to the Associated Press. Of the 317 detainees who received the form, 63 gave a positive response, 17 a negative one, 35 returned it without any response and 202 declined to return the form. ILM, 2006, p. 722. Ibid., p. 752.

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treated under an “enemy combatant” label and entitled, as such, to nothing except what is granted by the President of the United States. They have been put in a place that was considered outside the territory of the United States, a sort of lunar locality where no law applies except what is ruled by the President of the United States. The assumption made in the 2006 report that all this was done to extract information from the detainees on other terrorism suspects provides quite a plausible explanation of the facts. There is a logical chain between enforced disappearance, arbitrary detention and the act of extracting information from a detainee (Does this mean torture? Does this mean other cruel, inhuman or degrading treatment? Does this mean a wet towel and the dripping of water to induce the misperception of suffocation?). Now the confused story of Guantanamo Bay is becoming clearer. But a question still remains. How, in a country endowed with a longstanding democratic tradition, with abidance by the rule of law and with a fully independent judiciary power, can some poorly conceived legal technicalities be enough to justify what was being done at Guantanamo Bay? To aid the digestion of all this, lawyers such as Mr. Bybee, Ms. Beaver or others of similar inclinations are of no help, despite all their efforts. Indeed no lawyers would be of any help. Nearly everybody knows that enforced disappearance, arbitrary detention, torture and other cruel, inhuman or degrading treatment cannot be performed under any label of legality. They must be performed as covertly as possible. Instead of lawyers, secret agents and executors are needed. 1.6.C From Abroad to Abroad (Extraordinary Renditions) Yet some people know that enforced disappearance, arbitrary detention, torture and other cruel, inhuman or degrading treatment must be performed as covertly as possible. The not-in-my-backyard doctrine, as applied to extracting information relevant for security purposes, has a second variation: extraordinary renditions.108 Also this variation is based on the aim of achieving the ideal situation: as already remarked above, this occurs if information is extracted from a foreign suspect in a foreign country by foreign agents; then,

108

See, for a fully convincing critical analysis, J.F.C. DiMento, G. Geis, “The Extraordinary Condition of Extraordinary Rendition: the C.I.A., the D.E.A., Kidnapping, Torture and the Law”, in War Crimes, Genocide and Crimes Against Humanity, 2005, pp. 5–46.


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if the information, purged of any detail on how it was obtained, independently reaches the national intelligence or other interested State services. In the case of the extraordinary rendition doctrine, “abroad” really is “abroad”. The foreign victims are captured abroad and transferred abroad to a State having a deplorable human rights record where the relevant information is extracted from them.109 In these countries (so-called “extractor States”), the interrogation techniques are much harsher than those that could be approved by Mr. Bybee or Ms. Beaver. The extraordinary rendition programme is a circuit that involves at least three States: the captor State, a foreign country where the victim is captured (the accomplice State) and occasionally other foreign accomplice States where the victim is provisionally transferred and, finally, another foreign country, the extractor State. Under a mandate that has never been fully clarified as regards its origin and contents, the United States Central Intelligence Agency (CIA) is supposed to run the programme. The practice, as reported in two memoranda prepared in 2006 by the rapporteur Mr. Dick Marty, for the Parliamentary Assembly of the Council of Europe, may be described as follows: The central effect of the post-9/11 rendition programme has been to place captured terrorist suspects outside the reach of any justice system and keep them there. The absence of human rights guarantees and the introduction of ‘enhanced interrogation techniques’ have led, in several cases examined, [. . .] to detainees being subjected to torture.110

109

110

In some cases the movement, rather than being from abroad to abroad, has involved also Guantanamo Bay (from abroad to abroad via Guantanamo Bay): “There have been consistent reports about the practice of rendition and forcible return of a Guantanamo detainee to countries where they are at serious risk of torture. An example is the transfer of Mr. Al Qadasi to Yemen in April 2004. He has since been visited by his lawyer and international non governmental organizations. According to his lawyer, he was not warned about his imminent return to Yemen and therefore had no possibility to appeal. In early April he received an injection against his will, which led to loss of consciousness and hallucinations. When he woke up several days later, he found himself in prison in Sana’a, where he alleges he was beaten and deprived of food” (2006 report on the Situation of Detainees at Guantanamo Bay, supra note 78, para. 55). Council of Europe, Parliamentary Assembly, Alleged Secret Detentions and Unlawful Inter-State Transfers Involving Council of Europe Member States, Draft Report – Part II (Explanatory Memorandum), Rapporteur Mr. Dick Marty, AS/Jur (2006) 16 Part II, 7 June 2006, para. 36. In this context it is worth noting that, under Article 17.1 of the 2007 Convention, “No one shall be held in secret detention”. On the issue, see infra 4.9.

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[. . .] The key operational change has been the mandate given to the CIA to administer its own detention facilities. When it takes terrorist suspects into custody, the CIA no longer uses rendition to transport them in the countries where they are wanted. Instead, for the high-level suspects at least, rendition now leads to secret detention at the CIA’s so-called ‘black sites’ in unspecified locations around the world. Rather than face any form of justice, suspects become entangled in the spider’s web.111 The CIA action programme set up after 11 September 2001 and known as the ‘GST programme’ gives the CIA greatly enhanced powers (apparently comparable to those which existed during the cold war). It allows the CIA to arrest suspects with the help of foreign internal security services, hold them captive abroad, employ interrogation techniques (some of which are very widely regarded as possibly contravening United States’ international undertakings regarding prohibition of torture) and fly prisoners between countries.112

The rapporteur provides details on how the transport of the victim is effected through CIA so-called “security checks”: The ‘security check’ used by the CIA to prepare a detainee for transport on a rendition plane was described to us by one source in the American intelligence community as a ‘twenty-minute takeout’. His explanation was that within a very short space of time, a detainee is transformed into a state of almost total immobility and sensory deprivation. [. . .] The general characteristics of this ‘security check’ can be established from a host of testimonies as follows: i. it generally takes place in a small room (a locker room, a police reception area) at the airport, or at a transit facility nearby. ii. the man is sometimes already blindfolded when the operation begins, or will be blindfolded quickly and remain so throughout most of the operation. iii. four to six CIA agents perform the operation in a highly-disciplined, consistent fashion – they are dressed in black (either civilian clothes or special ‘uniforms’), wearing black gloves, with their full faces covered. Testimonies speak, variously of ‘big people in black balaclavas’, people ‘dressed in black like ninjas’, or people wearing ‘ordinary clothes, but hooded’. iv. the CIA agents ‘don’t utter a word when they communicate with one another’, using only hand signals or simply knowing their roles implicitly. v. some men speak of being punched or shoved by the agents at the beginning of the operation in a rough or brutal fashion; others talked about being gripped firmly from several sides. vi. the man’s hands and feet are shackled.

111 112

Ibid., para. 38. Council of Europe, Parliamentary Assembly, Alleged Secret Detentions in Council of Europe Member States, Information Memorandum II, Rapporteur Mr. Dick Marty, AS/Jur (2006) 03 Rev, 22 January 2006, para. 55.


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vii. the man has all his clothes (including his underwear) cut from his body using knives or scissors in a careful, methodical fashion; an eye-witness described how ‘someone was taking these clothes and feeling every part, you know, as if there was something inside the clothes, and then putting them in a bag’. viii. the man is subject to a full-body cavity search, which also entails a close examination of his hair, ears, mouth and lips. ix. the man is photographed with a flash camera, including when he is nearly or totally naked; in some instances, the man’s blindfold may be removed for the purpose of a photograph in which his face is also identifiable. x. some accounts speak of a foreign object being forcibly inserted into the man’s anus; some accounts speak more specifically of a tranquiliser or suppository being administered per rectum – in each description this practice has been perceived as a grossly violating act that affronts the man’s dignity. xi. the man then is dressed in a nappy or incontinence pad and a loosefitting ‘jump suit’ or set of overalls; ‘they put diapers on him and then there is some handling with these handcuffs and foot chains, because first they put them on and then they are supposed to put him in overalls, so they then have to alternatively unlock and relock them’. xii. the man has his ears muffled, sometimes being made to wear a pair of ‘headphones’. xiii. finally a cloth bag is placed over the man’s head, with no holes through which to breathe or detect light; they ‘put a blindfold on him and after that a hood that apparently reaches far down on his body’. xiv. the man is typically forced aboard a waiting aeroplane, where he may be ‘placed on a stretcher, shackled’, or strapped to a mattress or seat, or ‘laid down on the floor of the plane and they bind him up in a very uncomfortable position that makes him hurt from moving’. xv. In some cases the man is drugged and experiences little or nothing of the actual rendition flight; in other cases, factors such as the pain of the shackles or the refusal to drink water or use the toilet make the flight unbearable: ‘this was the hardest moment in my life’. xvi. in most cases, the man has no notion of where he is going, nor the fate that awaits him upon arrival.113 Yet [. . .] there are striking parallels between several of these renditions, particularly as they relate to the CIA’s methodology. It seems that in each separate case, rendition was carried out in an almost identical manner. Collectively the cases in the report testify as to the existence of an established modus operandi of rendition, put into practice by an elite, highly-trained and highly-disciplined group of CIA agents who travel around the world mistreating victim after victim in exactly the same fashion.114

113

114

Council of Europe, Parliamentary Assembly, Alleged Secret Detentions, supra note 110, paras. 84 and 85. Ibid., para. 80.

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The practice of extraordinary rendition does not appear to be denied by leading United States authorities: In an interview broadcast by the American channel ABC on 29 November 2005, the Director of the United States Central Intelligence Agency, Porter Gross, did not deny the existence of CIA secret prisons in various parts of the world where people suspected of terrorism were held. He did, however, categorically deny that the United States used torture, while refusing to pass judgment on certain interrogation techniques used by its services. On 5 September 2005, Condoleezza Rice, the American Secretary of State, made a statement addressed to Europeans in which she did not, at any point, deny the existence of the alleged centres, or of the flights transporting detainees, but reaffirmed the need to resort to ‘extraordinary renditions’ in the context of efforts to counter terrorism. The only thing that Ms. Rice categorically denied was the use of torture.115

However, the United States is not prepared to publicly discuss specific cases. As stated in 2006 by the Chief Legal Advisor to the Department of State, Mr. John Bellinger: We have thought seriously about whether we can answer specific questions publicly and say that there were one, two or three renditions and where they went through. But we have concluded that, due to the nature of intelligence activities, we simply cannot get into the business of confirming or denying specific questions – as much as we would like to. I’m not going to confirm or deny whether there have been any renditions that have gone through Europe at all.116

115

116

Council of Europe, Parliamentary Assembly, Alleged Secret Detentions, supra note 112, paras. 8 and 9. “Extraordinary rendition came in for attention from the Bush administration when Secretary of State Condoleezza Rice felt it necessary to address the issue before she embarked on a trip to European countries which had been critical of American actions. The Secretary claimed that the United States did not authorize, employ, or condone torture under any circumstances, though she added the qualification that the U.S. would ‘use every lawful weapon’ to defeat terrorist suspects. Her carefully drafted statement avoided mention of specific incidents, such as the Italian case, and was wrapped in ambiguity in regard to the precise meaning of words such as ‘condone’ and ‘lawful’ and ‘torture’. Once in Europe, Rice warned the leaders of host countries that were they to challenge American anti-terrorist tactics their criticisms could damage efforts to protect their own citizens from attacks” (J.F.C. DiMento, G. Geis, supra note 108, p. 26). Council of Europe, Parliamentary Assembly, Alleged Secret Detentions, supra note 110, para. 273.


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Despite the lack of cooperation, the rapporteur for the Council of Europe Parliamentary Assembly was able to discuss nine specific cases of extraordinary renditions (El-Masri; the “Algerian Six”; Ahmed Agiza and Mohammed Alzery; Abu Omar; Bisher Al-Rawi and Jamil El-Banna; Maher Arar; Muhammad Bashmila and Salah Ali Qaru; Mohammed Zammar; Binyam Mohammad al Habashi). Four extractor States are named in the reports (Afghanistan, Egypt, Morocco, Syria). The reading of the alleged facts provides appalling instances of brutal wounds to the dignity of mankind.117 The mere thought that those who are responsible for and accomplices in the torture endured by the victims are likely to escape any judicial investigation, because of invoked national security reasons, should arouse feelings of disgust in almost every human being. This sentiment is increased by the consideration that against some of the victims not even the slightest accusation could ever be made.118 Indeed, while they always eager to take cover behind the shield of national security reasons, the top brains of extraordinary renditions, the specialists of the “security checks” and their sponsors or followers do not offer many guarantees of acting on the basis of duly verified assumptions. In sharp contrast stands the “courage and resilience” of some of the victims.119

117

118

119

“At its worst, the torture involved stripping Binyam naked and using a doctor’s scalpel to make incisions all over his chest and other parts of his body. ‘One of them took my penis in his hand and began to make cuts. He did it once and they stood for a minute, watching my reaction. I was in agony, crying, trying desperately to suppress myself, but I was screaming. They must have done this 20 to 30 times, in maybe two hours. There was blood all over. They cut all my private parts. One of them said it would be better just to cut it off, as I would only breed terrorists’ ” (ibid., para. 206). After having been captured in the United Kingdom and forcibly transferred to Morocco and Afghanistan, Binyam is now supposed to be detained at Guantanamo Bay. “The story of El-Masri is the dramatic story of a person who is evidently innocent – or at least against whom not the slightest accusation could ever be made – who has been through a real nightmare in the CIA’s ‘spider web’, merely because of a supposed friendship with a person suspect at some point in time to maintain contacts with terrorist groups. El-Masri is still waiting for the truth to be established, and for an excuse. His application to a court in the United States has been rejected, at least in the first instance; not because it seemed unfounded, but because the Government brought to bear so-called ‘national security’ and ‘state secrecy’ interests. This speaks for itself ” (ibid., para. 132). “I salute the remarkable courage and resilience of those who have been held in secret detention and subsequently released, like Khaled El-Masri and Maher Arar. Both these men have spoken eloquently to us about what moves them to recount their experiences despite the obvious pain and trauma of doing so. From these words we must draw our own resolve to uncover the secret abuses of the spider’s web and ensure that they never

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When legal explanations have to be put forward,120 resort to extraordinary rendition has been justified by the United States on the basis of a legal technicality. As stated in 2006 by Mr. Bellinger, the Chief Legal Advisor to the Department of State, referring to Article 3 of the Convention against Torture which binds a State Party not to expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture: For more than a decade, the position of the US Government, and our courts, has been that all of those terms refer to returns from, or transfers out from the United States. So we think that Article 3 of the CAT [= Convention against Torture] is legally binding upon us with respect to transfers of anyone from the United States; but we don’t think it is legally binding outside the United States.121

Even more deceptive is the response given by Secretary of State, Ms. Rice, to a question made at a press conference on 7 December 2005: Question: Madame Secretary, is the United States only obliged to prevent cruel, inhumane, and degrading treatment to its detainees on U.S. territory? Secretary Rice: As a matter of U.S. policy, the United States obligations under the CAT, which prohibits, of course, cruel and inhumane and degrading treatment, those obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.122

As it has been remarked, this statement, far from being a change in the official United States position, is based on a subtle distinction between what can be a matter of policy, being devoid of any mandatory character, and what is due under a true legal obligation.123 However, under the basic rules on

120

121 122

123

again be allowed to occur. From Mr. El-Masri, “all I want is to know the truth above what happened to me and to have the American Government apologise for what it did”; from Mr. Arar, “the main purpose of talking about my torture is to prevent the same treatment from ever happening to another human being” (ibid., para. 91). The rapporteur made the following cutting remark: “With regard to the question of fitting into legal frameworks, I find it particularly noteworthy that the United States does not see itself bound to satisfy anyone’s interpretation of international law but its own” (ibid., para. 271). Ibid., para. 272. J.R. Crook, “Contemporary Practice of the United States Relating to International Law”, in AJIL, 2006, p. 235. J.R. Crook, “Contemporary Practice of the United States Relating to International Law”, in AJIL, 2006, p. 723.


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responsibility for an internationally wrongful act, the conduct of any State organ is attributable to the State to which it belongs, without any qualification on where the conduct takes place. Moreover, aid, assistance, direction or control by a State in the commission of an internationally wrongful act by another State do not release the former from its responsibility.124 Yet the direct involvement of the United States in the practice of extraordinary rendition is evident in the mere fact that United States agents take care of the transfer of the victim and, in several cases, attend the interrogation and exploit the information extracted. The explanation given by the rapporteur, Mr. Marty, who is very unimpressed by legal technicalities or conundrums and goes to the substance of the facts, seems much more persuasive: The current US administration obviously considers that the traditional instruments of the democratic State governed by the rule of law – justice, constitutional guarantees of a fair trial, respect for human dignity – are inappropriate for facing up to the terrorist threat. Persons assumed to be terrorists are therefore arrested, interrogated, deported and detained without any rights or safeguards, thus accepting the concrete and inevitable risk of subjecting completely innocent people to such treatment (inside the CIA an internal inquiry is reportedly under way into several cases of individuals who had been abducted, imprisoned and tortured, before it emerged that the wrong people had been targeted).125

Apart from the captor and the extractor States, in the circuit of extraordinary renditions the position of the accomplice States is particularly shameful for their slavish attitude.126 In most cases, they officially deny that they are involved in extraordinary renditions, as they know what serious violations of domestic and international law are involved in such a practice. But, unofficially, the authorities of the accomplice State (in particular its intelligence 124

125

126

See Article 2, 4, 16 and 17 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted in 2001 by the International Law Commission. Council of Europe, Parliamentary Assembly, Alleged Secret Detentions, supra note 112, para. 102. During the negotiations for the 2007 Convention, Cuba pointed out that “one aspect of the subject was not covered by the draft instrument, since no provision was made, among the acts that entailed responsibility in cases of enforced disappearance, for the acts of a State that abetted, whether openly or not, enforced disappearances in other States” (United Nations, Economic and Social Council, Report of the Intersessional Open-ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of All Persons from Enforced Disappearances, E/CN.4/2006/57, 2 February 2006, para. 116).

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agents) fully co-operate with the captor State, either by direct participation in the action or by voluntary omissions. It is extremely unlikely that a person forcibly disappears from a country and is forcibly transferred abroad through an operation which involves many foreign secret agents without the knowledge and the consent of the country where the person has been captured. If the State where such an operation has occurred were not an accomplice, it would react immediately with the captor State after the discovery of the facts and ask for a reparation of the wrongful act (this in fact was the behaviour of Argentina with Israel in 1960, when Adolf Eichmann was captured in Buenos Aires and forcibly transferred to Israel through a carefully planned secret operation). The government of the affected State would also be expected to immediately dismiss the heads of the security and intelligence services because of their evident ineptitude. But this was not the case with the recent practice of extraordinary rendition of terrorism suspects. Instead, the accomplice States have tended to cover and extenuate the wrongdoing, to back their security and intelligence services, to hinder the investigation through judicial bodies invoking mysterious reasons of State security. The rapporteur to the Council of Europe Parliamentary Assembly makes the following remarks: It has to be said that most governments did not seem particularly eager to establish the alleged facts. The body of information gathered makes it unlikely that European states were completely unaware of what was happening, in the context of the fight against international terrorism, in some of their airports, in their airspace or at American bases located on their territory. Insofar as they did not know, they did not want to know. It is inconceivable that certain operations conducted by American services could have taken place without the active participation, or at least the collusion, of national intelligence services. If this were the case, one would be justified in questioning the effectiveness, and therefore the legitimacy, of such services. The main concern of some governments was clearly to avoid disturbing their relationships with the United States, a crucial partner and ally. Other governments apparently work on the assumption that any information learned via their intelligence services is not supposed to be known.127 The impression which some Governments tried to create at the beginning of this debate – that Europe was a victim of secret CIA plots – does not seem to correspond to reality. It is now clear – although we are still far from

127

Council of Europe, Parliamentary Assembly, Alleged Secret Detentions, supra note 110, para. 230.


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establishing the whole truth – that authorities in several European countries actively participated with the CIA in these unlawful activities. Other countries ignored them knowingly, or did not want to know.128

The leading United States authorities, such as the Secretary of State, Ms. Rice, and her predecessor, Mr. Powell, have pointed out that the United States has always respected the national sovereignty of other countries.129 These interesting statements can be translated as follows: ‘Rendition’ affecting Europe seems to have concerned more than a hundred persons in recent years. Hundreds of CIA-chartered flights have passed through numerous European countries. It is highly unlikely that European governments, or at least their intelligence services, were unaware.130

In several cases the facts speak for themselves. At the airport of Bromma, Sweden, Mr. Agiza and Mr. Alzery were subjected to a “security check” by hooded American agents under the eye of Swedish officials who remained totally passive and did nothing to prevent it.131 The “Algerian Six” (in fact four Bosnian citizens and two longstanding residents) were handed over to American forces by the authorities of Bosnia-Herzegovina themselves, despite the fact that the Human Rights Chamber of Bosnia-Herzegovina had issued an order requiring the government to take all the necessary steps to prevent them from being forcibly deported.132 In Poland, a parliamentary inquiry into the allegation that a secret prison existed in the country has been conducted

128 129

130

131

132

Ibid., para. 285. Council of Europe, Parliamentary Assembly, Alleged Secret Detentions, supra note 112, para. 67. See also J.R. Crook, “Contemporary Practice of the United States Relating to International Law”, in AJIL, 2006, p. 234. Council of Europe, Parliamentary Assembly, Alleged Secret Detentions, supra note 112, para. 66. In 2005 the U.N. Committee against Torture decided that the facts constituted breaches by Sweden of Articles 3 and 22 of the Convention against Torture (communication No. 233/2003, Agiza v. Sweden, in ILM, 2005, p. 1103). “The government of Bosnia and Herzegovina has the merit of no longer denying the fact that it handed the six men over to the American forces. According to information I have received, the Bosnian authorities acted under extraordinary pressure from the American embassy in Sarajevo, but the fact remains that they acted in violation of clear decisions by the Supreme Court and the Human Rights Chamber ordering the release of these men” (Council of Europe, Parliamentary Assembly, Alleged Secret Detentions, supra note 110, para. 149).

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behind closed doors and its conclusions have not been made public, except at a press conference announcing that nothing untoward had been found.133 Exemplary is the story of the Egyptian citizen Abu Omar, a political refugee kidnapped in Italy and taken, via the military airbases of Aviano (Italy) and Ramstein (Germany), to Egypt, where he was tortured, released and re-arrested. The operation involved 25 American agents led by a gentleman who was appointed as an American consular agent in Milan, but is suspected to have been in reality the CIA agent in charge of the operation:134 The most disturbing case – because it is the best documented – is probably that of Italy. [. . .] The Milan prosecuting authorities and police have been able, thanks to a remarkably competent and independent investigation, to reconstruct in detail the extraordinary rendition of the imam Abu Omar, abducted on 17 February 2003 and handed over to the Egyptian authorities. The prosecuting authorities have identified 25 persons responsible for this operation mounted by the CIA, and have issued warrants against 22 of them. The then Justice Minister in fact used his powers to impede the judicial authorities’ work: as well as delaying forwarding requests for judicial assistance to the American authorities, he categorically refused to forward the arrest warrants issued against 22 American citizens. Worse still: the same Justice Minister publicly accused the Milan judiciary of attacking the terrorist hunters rather than the terrorists themselves. Furthermore, the Italian Government did not even consider it necessary to ask the American authorities for explanations regarding the operation carried out by American agents on its own national territory, or to complain about the fact that Abu Omar’s abduction ruined an important anti-terrorism operation being undertaken by the Milan judiciary and police. [. . .] It is unlikely that the Italian authorities were not aware of this large-scale CIA operation. [. . .] The investigation in progress shows that Italian officials directly took part in Abu Omar’s abduction and that the intelligence services were involved.135

133 134

135

Ibid., para. 252. “The Italian investigators likewise established that the presumed leader of the abduction operation – who had worked as the American consul in Milan – was in Egypt two weeks immediately after Omar was handed over to the Egyptian authorities. It may safely be inferred that he took part, in one way or another, in Omar’s interrogation” (Council of Europe, Parliamentary Assembly, Alleged Secret Detentions, supra note 112, para. 43). Strangely enough, the extraordinary rendition team allegedly led by the consul did not show the usual professionalism. They apparently prepared the operation moving around Italy like bulls in a china shop, spending a lot of money and leaving many traces behind them. This could only facilitate the subsequent investigation by the judicial authorities of Milan. Council of Europe, Parliamentary Assembly, Alleged Secret Detentions, supra note 110, para. 231.


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The passivity of the Italian executive authorities is astonishing indeed. A foreign consular agent, instead of issuing passports and visas, was accused by judicial prosecutors to have been in charge of a large-scale operation resulting both in gross breaches of the national criminal code and gross violations of the national sovereignty. In these circumstances the only reaction by the Italian government came from the then Minister of Justice, who blamed the Milan prosecutors, the only ones who were able to show “great competence and remarkable independence in the face of political pressures”.136 The least that may be said here is that the United States deserves better consuls and Italy better ministers of justice. In his admirable memoranda Mr. Marty, the rapporteur for the Council of Europe Parliamentary Assembly, reaches the following plausible conclusion137 with regard to how far European countries may be implicated as accomplice States: Whilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-state transfers have taken place in Europe. [. . .]138 In this sense, it must be stated that to date, the following member States could be held responsible, at varying degrees, which are not always settled definitively, for violations of the rights of specific persons identified below (respecting the chronological order as far as possible: – Sweden, in the cases of Ahmed Agiza and Mohamed Alzery; – Bosnia-Herzegovina, in the cases of Lakhdar Boumediene, Mohamed Nechle, Hadj Boudella, Belkacem Bensayah, Mustafa Ait Idir and Saber Lahmar (the ‘Algerian Six’); – the United Kingdom, in the cases of Bisher Al-Rawi, Jamil El-Banna and Binyam Mohammed; – Italy, in the case of Abu Omar;

136

137

138

Ibid., para. 237. Subsequently, a number of agents of the SISMI, the Italian military intelligence service, were charged by the judicial authorities of Milan with serious violations of the Italian penal code relating to the abduction of Mr. Abu Omar. The trial is pending. “I do not set myself up to act as a criminal court, because this would require evidence beyond any reasonable doubt. My assessment rather reflects a conviction based upon careful examination of balance of probabilities, as well as upon logical deductions from clearly established facts. It is not intended to pronounce that the authorities of these countries are ‘guilty’ for having tolerated secret detention sites, but rather it is to hold them ‘responsible’ for failing to comply with the positive obligation to diligently investigate any serious allegation of fundamental rights violations” (ibid., para. 287). Ibid.

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– – –

– – –

the former Yugoslav Republic of Macedonia, in the case of Khaled El-Masri; Germany, in the cases of Abu Omar, of the ‘Algerian Six’, and Khaled El-Masri; Turkey, in the case of the ‘Algerian Six’.139 Some of these above mentioned states, and others, could be held responsible for collusion – active or passive (in the sense of having tolerated or having been negligent in fulfilling the duty to supervise) – involving secret detention and unlawful inter-state transfers of a non specified number of persons whose identity so far remains unknown: Poland and Romania, concerning the running of secret detention centres; Germany, Turkey, Spain and Cyprus for being ‘starting points’ for flights involving the unlawful transfer of detainees; Ireland, the United Kingdom, Portugal, Greece and Italy for being ‘stopovers’ for flights involving the unlawful transfer of detainees.140

Yet not only the United States is setting aside the traditional instruments of a State governed by the rule of law. Many European States are moving in the same direction as well, taking on a less muscular but more slavish attitude. Under the label of the fight against terrorism, secret services and executors are informally given an overarching power to disregard basic legal provisions, to overrule judicial authorities, to trample on fundamental human rights. The defeat of legality is not taking place without a certain degree of resistance by those who are entrusted with the task of rendering justice. Also in its extraordinary rendition variation, the “not-in-my-backyard” doctrine presents a weak point. As happened in the United States with regard to the Guantanamo Bay detainees, also in accomplice States (and perhaps even in extractor States) there may be judicial authorities that are disinclined to swallow such an insult to the rule of law. In the United Kingdom a judgment rendered on 8 December 2005 by the House of Lords in the case A and Others v. Secretary of State for the Home Department141 may be quoted in this regard. The Anti-terrorism, Crime and Security Act 2001 gives to the United Kingdom authorities the power to detain, whether temporarily or indefinitely, a suspected international terrorist certified under the act. Appeals against the certification may be submitted to

139 140 141

Ibid., para. 288. Ibid., para. 289. ILM, 2006, p. 503.


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the SIAC (Special Immigration Appeals Commission).142 However, according to the SIAC and the United Kingdom Secretary of State, the decision on the certification of the appellant may be taken on the basis of information which has or may have been obtained by torture inflicted in foreign countries without British complicity.143 To tell the truth, the absence of complicity by the British authorities is subject to some qualification: It appears to be the practice of the Security Services, in their dealings with those countries in which torture is most likely to have been used, to refrain, as a matter of diplomatic tact or a preference for not learning the truth, from inquiring into whether this was the case.144 The security services, as the Secretary of State has made clear, do not wish to imperil their relations with regimes where torture is practised.145

Yet the House of Lords refused to accept the idea that evidence obtained under torture might be used before the SIAC: It trivialises the issue before the House to treat it as an argument about the law of evidence. The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court, irrespective of where, or by whom, or on whose authority the torture was inflicted. To that question I would give a very clear negative answer.146 The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to the ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.

142

143

144 145 146

In many respects the act limits the rights of the appellant. It provides “for proceedings to be heard without the appellant being given full particulars of the reason for the decision under appeal, for proceedings to be held in the absence of the appellant and his legal representative, for the appellant to be given a summary of the evidence taken in his absence and for the appointment by the relevant law officer of a legally qualified special advocate to represent the interests of an appellant in proceedings before SIAC from which the appellant and his legal representative are excluded, such person having no responsibility towards the person whose interests he has appointed to represent” (judgment, supra note 65, opinion of Lord Bingham of Cornhill, para. 6). The Secretary of State referred to the “important and practical need for the security services and the Secretary of State to obtain intelligence and evidence from foreign official sources, some of which (in the less progressive countries) might dry up if their means of obtaining intelligence and evidence were the subject of intrusive inquiry” (ibid., para. 46). Ibid., opinion of Lord Hoffmann, para. 98. Ibid., opinion of Lord Bingham of Cornhill, para. 59. Ibid., para. 51.

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But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes into account the all but universal consensus embodied in the Torture Convention.147

An interesting remark was made in the opinion by Lord Hope of Craighead who, recalling that torture was prohibited in England in 1640 but continued to be used in Scotland until 1708, pointed out that the practice of extra-ordinary renditions has longstanding origins: When the jurisdiction of the Star Chamber was abolished in England prisoners were transferred to Scotland so that they could be forced by the Scots Privy Council which still used torture to provide information to the authorities. This is illustrated by the case of Robert Baillie of Jervishwood whose trial took place in Edinburgh in December 1684. [. . .] Robert Baillie had been named by William Spence, who was suspected of being involved in plotting a rebellion against the government of Charles II, as one of his co-conspirators. Spence gave this information after having been arrested in England and taken to Scotland, where he was put on trial before a jury in the High Court of Justiciary in Edinburgh. All objections having been repelled by the trial judge, the statement which Spence had given under torture was read to the jury. Baillie was convicted the next day, and the sentence of death that was passed on him was executed that afternoon. There is a warning here for us. ‘Extraordinary rendition’, as it is known today, is not new. It was being practised in England in the 17th century.148

There is little need to add, in conclusion, that the enforced disappearance of the victim is an important element in the practice of extraordinary renditions which is characterized by secrecy in the capture procedures, the establishment of secret detention centres and the long lasting failure by the States involved to tell the truth.149 The Human Rights Committee, in the concluding observations made on 27 July 2006 on the report submitted by the United States under Article 40 of the International Covenant on Civil and Political Rights, made the following remark: The Committee is concerned by credible and uncontested information that the State Party has seen fit to engage in the practice of detaining people secretly

147 148 149

Ibid., para. 52. Ibid., opinion of Lord Hope of Craighead, para. 107. On 12 October 2004 the non governmental organization Human Rights Watch released a report denouncing that “disappearances were a trademark abuse of Latin American military dictatorships in their dirty war on alleged subversion. Now they have become a United States tactic in its conflict with Al Qaeda” (Human Rights Watch, The United States’ Disappeared – The CIA’s Long-Term “Ghost Detainees”, New York, 2004).


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and in secret places for months and years on end, without even keeping the International Committee of the Red Cross informed. In such cases, the rights of the families of the detained persons have also been violated. It is further concerned that, even when such persons may have their detention acknowledged, they and others have been held for months or years in prolonged incommunicado detention, a practice that violates the rights protected by Articles 7 and 9. In general, it is concerned by an apparent practice, beyond the stated need to remove them from the battlefield, to hold people in places where their enjoyment of the protection of domestic or international law is blocked or substantially curtailed.150

Seen from the point of view of the victims, the situation is as follows: Personal accounts of this type of human rights abuse speak of utter demoralisation. Of course, the despair is greatest in cases where the abuse persists – where a person remains in secret detention, without knowing the basis on which he is being held, and where nobody apart from his captors knows about his exact whereabouts or wellbeing. The uncertainty that defines rendition and secret detention is torturous, both for those detained and those for whom they are ‘disappeared’.151 Binyam’s family told my representative that he disappeared in summer 2001. This very close family subsequently endured several years of desperate uncertainty about his whereabouts and wellbeing, only partially clarified by their first visit from FBI [= the United States Federal Bureau of Investigation] agents three years later, in 2004. Although they have received a handful of letters from him in Guantanamo, none of the family has been able to see or speak to Binyam for five years.152

In 2005 the United Nations Working Group on Enforced or Involuntary Disappearances stressed the serious concerns raised by enforced disappearances linked to the “war on terror”, secret detention centres and extraordinary renditions: The Working Group again stresses its grave concern that anti-terrorist activities are being used by an increasing number of States as an excuse for not respecting the obligations of the Declaration [= the 1992 U.N. General Assembly

150

151

152

Para. 12 of the concluding observations. As stated in December 2005 by the Department of State legal adviser, “even though we’re not legally required to do so, we do provide access to the vast majority of detainees under our control. There are some, however, that we do not” (J.R. Crook, “Contemporary Practice of the United States Relating to International Law”, in AJIL, 2006, p. 235). Council of Europe, Parliamentary Assembly, Alleged Secret Detentions, supra note 110, para. 89. Ibid., para. 199.

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Declaration]. Credible reports point to the repression of opposition groups in many States in the name of a “war on terror”. In addition “extraordinary rendition” has been used to transport terrorist suspects to other States for aggressive interrogation. Information continues to reach the Working Group on the existence of secret detention centres where terrorist suspects are held in complete isolation from the outside world. In all three situations, people disappear. As is well documented, disappearance is often a precursor to torture and even to extrajudicial execution. The Working Group is particularly troubled about reports of disappearances linked to the “war on terror”. The Working Group has noted a strong trend since 2001 whereby many States explain disappearances with reference to “terrorists”. In some countries, authorities use the need to combat terror as a justification for repression against opposition groups. This sometimes results in disappearances. In addition, the reported use of “extraordinary rendition” – the sending of detainees to other countries for aggressive interrogation – and the alleged existence of secret detention centres in a number of countries is a cause of great concern to the Working Group. In the experience of the Working Group, secret detention creates situations inviting further abuse, including disappearance. The Working Group reminds all Governments that under article 7 of the Declaration, “No circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances”. This includes any type of counter-terrorist campaign. The Working Group urges all Governments to comply with their obligations under international human rights and international humanitarian law, in particular under the Declaration, and to make available to families all information on the fate and whereabouts of any person who is arrested and detained, for whatever reason. The Working Group calls upon Governments to comply with their obligations under Article 10 of the Declaration. Any person deprived of liberty shall be held in an officially recognized place of detention (Art. 10, para. 1), accurate information on the detention and transfer of such persons should be made promptly available to their family and counsel (Art. 10, para. 2), and an official up-to-date register of detainees must be available in every place of detention (Art. 10, para. 3). In several cases considered by the Working Group, it was noted that persons have reportedly been arrested in one country and handed over by the authorities to another country and subsequently disappeared. The Working Group wishes to remind all Governments of their obligations under Article 8 of the Declaration. This article clearly affirms that no State shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he/she would be in danger of enforced disappearance (Art. 8, para. 1).153

153

E/CN.4/2006/56, supra note 35, paras. 22 and 594–596.


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As pointed out by Mr. Toope, Chiarperson of the Working Group, Public acknowledgment of detention was vital. Extradition and criminal cooperation arrangements were the right means of handling transfers of persons suspected of terrorism.154

1.6.D

The Fight against Terrorism and Human Rights

Despite its evident shortcomings, the “not-in-my-backyard” doctrine is related to a very serious concern: the response to the severe attacks carried out worldwide by organized groups of terrorists which prompted the adoption of special laws by several countries. The fight against terrorism is an urgent need. The committing of serious common crimes by terrorist organizations, including the indiscriminate slaughter of people, can never be considered as a form of political expression. States are called upon to act against political or paramilitary violence to safeguard the right to life of their citizens and, more generally, to ensure the enjoyment of rights and democracy. Today terrorism has become a specialized form of criminality which presents various peculiarities, such as its covert and trans-national organization, its capacity to intimidate and its sophistication. It is fully justifiable for States to defend their existence and their values, even if this defence involves some limitations of rights. That said, the question to be addressed is the following: can States, in the name of “national security” and in the accomplishment of their duties to take protective action against activities which seriously threaten citizens and democracy, resort to enforced disappearance and other gross violations of human rights? Or, in other words, can secret agents and executors encroach upon the competences which are reserved to judiciary power? The response to both questions can be only one: no, never. One of the main elements of national security itself is that enforced disappearances do not occur. Several international instruments confirm that the fight against terrorism must be carried out with due respect for basic human rights. After the tragic events which took place in the United States on 11 September 2001, the United Nations Security Council used its powers under chapter VII of the Charter to mandate member States to adopt specific measures to combat terrorism. Such measures, as set forth in Resolution 1373 (2001) adopted

154

Human Rights Council, Summary Records of the 3rd Meeting, supra note 9, para. 96.

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on 28 September 2001,155 do not include derogations to basic national and international provisions on human rights. In November 2002 the General Assembly of the United Nations, on Mexico’s initiative, adopted Resolution No. 57/219, underlining that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law, and recalling that certain human rights are recognized as not possible to be derogated under any circumstances. On 20 January 2003 the Security Council adopted Resolution 1456 (2003) where it stressed that: States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law” (para. 6).156

The warning by Judge Simma, as stated in his separate opinion attached to the judgment by the International Court of Justice of 19 December 2005 in the case on the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), should be recalled: Let me conclude with a more general observation on the community interest underlying international humanitarian law and human rights law. I feel compelled to do so because of the notable hesitation and weakness with which such community interest is currently manifesting itself vis-à-vis the ongoing attempts to dismantle important elements of these branches of international law in the proclaimed “war” on international terrorism (para. 39). If the international community allowed such interest [= interest in the protection of international humanitarian law and human rights law] to erode in the face not only of violations of obligations erga omnes but of outright attempts to do away with these fundamental duties, and in their place to open black holes in the law in which human beings may be disappeared and deprived of any legal protection whatsoever for indefinite periods of time, the international law, for me, would become much less worthwhile (para. 41).

155

156

Namely, the prevention of the financing of terrorism, through, inter alia, the freezing of the financial assets or economic resources of the persons who commit, or attempt to commit, terrorist acts or who participate in or facilitate the committing of terrorist acts; the establishment of terrorist acts as serious criminal offences in domestic laws and regulations, with commensurably serious punishment; and taking appropriate measures before granting refugee status to ensure that the asylum seeker has not planned, facilitated, or participated in the committing of terrorist acts. However, the word “should” used in the resolution is particularly regrettable.


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It is also appropriate to recall the words by Judge Cançado Trindade in his concurring opinion to the decision by the Interamerican Court of Human Rights of 15 September 2005 in the case Masacre de Mapiripán v. Colombia: No se combate el terror con el terror, sino en el marco del Derecho. Los que acuden al uso de la fuerza bruta se brutalizan ellos mismos, creando una espiral de violencia generalizada que termina por victimar los inocentes, inclusive niños. Que el caso de la Masacre de Mapiripán sirva de alerta a los heraldos irresponsables de la así-llamada “guerra contra el terror”, al margen el Derecho y de la Carta de las Naciones Unidas.157 La fuerza bruta genera la fuerza bruta, y, al final, qué tenemos? La nada, la devastación general, la descomposición del tejido social, las venganzas, las torturas y ejecuciones sumarias y otras violaciones graves del Derecho Internacional Humanitario y del Derecho Internacional de los Derechos Humanos, la transformación de los seres humanos en meros instrumentos de la confrontación y destrucción, – abriendo heridas que requerirán generaciones para cicatrizar.158 No se puede combatir el terror con sus propias armas. [. . .] Los heraldos y apologistas del uso de la fuerza bruta de hoy día no se dan cuenta del profundo efecto decivilizador de su postura, de sus efectos nocivos o nefastos para la humanidad.159

As stated in 2004 by the International Commission of Jurists, liberal democracies are not entitled to carte blanche with regard to how they react. There must be an adherence to limiting principles which reflect the values of individual rights, constitutionalism and democratic accountability.160

157

158

159

160

IACHR, Case Masacre de Mapiripán, supra note 54, para. 46 of the concurring opinion. An unofficial translation by the authors follows: “It is not possible to fight terror by means of terror, but it has to be done in the context of law. They who resort to the use of brute force, brutalize themselves indeed, creating a circle of general violence that victimizes innocents, including children. Be the case of the Mapiripán massacre an alert to the irresponsible heralds of the so called “war against terror”, outside the law and the United Nations Charter”. Ibid., para. 47. “Brute force generates only brute force and, in the end, what do we have? Nothing at all, general devastation, the decay of society, revenges, tortures and extra judiciary executions and other serious violations of international humanitarian law and international human law, the transformation of human beings in mere instruments of disputes and destruction, opening wounds that shall require entire generations to heal”. Ibid., para. 51. “It is not possible to fight against terror with its own weapons. The heralds and apologists of the use of force today do not see the deeply decivilizing effect of their approach, nor its negative or fatal effects on humanity”. International Commission of Jurists, The Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism, 28 August 2004.

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1.7

The Diffusion of Enforced Disappearance

As already remarked, enforced disappearances are not a phenomenon of the past, nor are they geographically limited to Latin America. In fact, things have changed in some Latin American countries which have been deeply affected by enforced disappearances and other serious human rights violations. The authorities of States such as Argentina, Chile and Uruguay are now trying to establish the truth and provide some justice to the victims. However, the scourge of enforced disappearance is widespread today and on the increase in other continents. Further, the phenomenon, due to its very nature and the impunity granted to perpetrators, is changing and it is affecting new types of victims. In its 2005 Report the United Nations Working Group on Enforced or Involuntary Disappearances pointed out that: The total number of cases transmitted by the Working Group to Governments since the Working Group’s inception is now 51,236 in more than 90 countries. The total number of cases under active consideration that have not yet been clarified or discontinued stands at 41,128 and concerns 79 States. Over the past five years, the Working Group has been able to clarify 7,087 cases. In 2005, the Working Group transmitted 535 cases of disappearance for the first time to 22 Governments, 91 of which allegedly occurred during the last year. The Working Group used the urgent action procedure for 132 of these cases, which allegedly occurred within the three months preceding the receipt of the Report by the Group. During the reporting period, the Working Group was able to clarify 1,347 cases of disappearance.161

The Working Group underlines the global dimension of the phenomenon as follows: Although the Working Group was initially formed to address the legacy of disappearance arising from authoritarian rule in Latin America, disappearance has now become a global problem not restricted to a specific region. The more common pattern today is that large-scale disappearances occur in States suffering from internal conflict, as in the case of Colombia, Nepal, the Russian Federation, Iraq, and the Sudan. In other countries political repression of opponents has resulted in hundreds of cases of disappearance. Countries such as Algeria and the Philippines may be mentioned in this regard. In some cases such as the Islamic Republic of Iran, radical political changes have cre-

161

E/CN.4/2006/56, supra note 35, paras. 18 and 591.


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ated conditions that led to hundreds of cases of disappearance. There are also countries that carry the burden of their past, with thousands of cases that still await clarification after decades, as in Argentina and Chile, and some countries in Central America. In certain situations, due to probable underreporting of disappearances especially but not uniquely in Africa, the Working Group expects that large numbers of reports of disappearance arising from current conflicts could be submitted to it during the coming years. The Working Group has highlighted such situations in its present report. Among the general factors found by the Working Group to account for the underreporting of disappearance cases are poverty, illiteracy, submissiveness to fatalism, fear of reprisal, weakness of administration of justice, ineffectual reporting channels and mechanisms, institutionalized systems of impunity, and a practice of silence. There may also be particular factors promoting the underreporting of the phenomenon of disappearance in given countries or regions. The Working Group is concerned that underreporting of disappearance in certain regions and countries is also due to restrictions on the work of civil society on this sensitive issue. It is difficult to receive information from some parts of the world in which there are many indications that human rights violations, including disappearances, have taken and are still taking place. [. . .] In the context of internal armed conflict, opposition forces have reportedly perpetrated disappearances. While the mandate of the Working Group is limited to violations carried out by State agents or non-State actors acting with the connivance of the State, the Working Group condemns the practice of disappearance irrespective of who the perpetrators may be. The Working Group regrets that disappearances continue to occur in many different countries. While in the past the phenomenon was mainly associated with the State policies of authoritarian regimes, today it occurs in the context of more complex situations of internal conflict or tensions generating violence, humanitarian crisis, and human rights violations including enforced disappearances. This is the dramatic situation in States like Colombia, Nepal, the Russian Federation and the Sudan where the prevention of disappearances is directly connected to the resolution of internal conflicts.162

Some information about what is occurring in regions of the world different from Latin America is provided hereunder. 1.7.A

Europe

In 2005 the Parliamentary Assembly of the Council of Europe adopted a resolution whereby it

162

Ibid., paras. 4–8 and 592.

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[. . .] unequivocally condemns enforced disappearance as a very serious human rights violation on par with torture and murder and it is concerned that this humanitarian scourge is not eradicated, even in Europe.163

In his 2005 Report to the Parliamentary Assembly on the issue of enforced disappearance,164 the special rapporteur, Mr. Christos Pourgourides, mentioned cases of disappearances which had occurred in occupied Cyprus, Turkey, the Russian Federation (Chechen Republic), Belarus, Ukraine and Azerbaijan.165 For instance, enforced disappearances in Chechnya are both widespread and systematic.166 According to statistics quoted by non governmental organizations, at least 2,090 people have disappeared since the conflict started in 1999. Non governmental organizations estimate the figure to be between 3,000 and 5,000, pointing out that disappearances are not random acts of criminality but rather follow a systematic pattern. While the Russian Government frequently claims that Chechen rebel forces are responsible for disappearances, evidence reportedly shows that federal or pro-Russian Chechen military forces or security agents are responsible for most of these acts.167 As regards Turkey, the majority of the disappearances have occurred in the South-East of the country and involve victims of Kurdish origin. A significant number of cases of disappearances attributed to Turkish authorities refer also to the occupation of Northern Cyprus since 1974.168

163

164

165

166

167 168

Council of Europe, Parliamentary Assembly Resolution 1463 (2005), 3 October 2005, para. 2. Report by Mr. Pourgourides, supra note 7, paras. 14–19. Of the utmost interest is also: Council of Europe, Parliamentary Assembly, Resolution 828/1984, 26 September 1984. The ECHR has delivered several judgments on the issue of enforced disappearance in cases related to Turkey and Russia (Chechnya), infra 2.4. See also E/CN.4/2006/56, supra note 35: cases of disappearance are reported by the UNGWEID from Belarus (3), Bulgaria (3), Denmark (1), France (1), Greece (3), Romania (1), Russian Federation (461), Serbia and Montenegro (17), Spain (3), Tajikistan (8), Turkey (181), Turkmenistan (2), Ukraine (4), United Kingdom (2) and Uzbekistan (19). See, inter alia, Human Rights Watch, The Dirty War in Chechnya: Forced Disappearances, Torture and Summary Executions, 2001; and E/CN.4/2006/56, supra note 35, para. 452. Ibid., paras. 452–453. See, in general, paras. 432–460. See, inter alia, E/CN.4/2006/56, supra note 35, paras. 548–552; Kurdish Human Rights Project, Disappearances. A Report on Disappearances in Turkey, London, 1996; and Amnesty International, Getting Away with Murder: Political Killings and “Disappearances” in the 1990s, London, 1990.


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In the context of the internal armed conflict in the former Yugoslavia, over 28,000 people were reported missing. Today their fate and whereabouts still remain unknown and they have to be formally considered as disappeared persons.169 1.7.B

Asia

The majority of cases on the backlog of the United Nations Working Group on Enforced or Involuntary Disappearances relate to Asian countries. Every year an increasing number of cases from this area are reported and urgent actions undertaken. In 2005 the Working Group decided to hold one of its regular sessions in Bangkok, Thailand, instead of Geneva or New York, in order to express its deep concern for the Asian situation.170 Lacking any regional intergovernmental organization to address the issue, the only bodies acting in the field are non governmental organizations, especially those created by relatives of the victims. According to the data collected by the Asian Federation against Involuntary Disappearances171 (AFAD) most enforced disappearances have been 169

170

171

In 1992 the United Nations Commission on Human Rights set up a special body in charge of the issue of enforced disappearances which occurred in the territory of former Yugoslavia, inspired by the methods of work of the UNGWEID. An independent expert and a special rapporteur on the issue of enforced disappearances in the territory of the former Yugoslavia were then elected. In 1997, the expert in charge of the mechanism resigned, denouncing a lack of political will on the part of the Serbs concerned. The whole mechanism was suspended (United Nations Commission on Human Rights, Resolution 1997/57, 15 April 1997, paras. 33–39). The HRCBH has developed an interesting case law on the issue of enforced disappearance, see infra 2.5. E/CN.4/2006/56, supra note 35. In 2005, the UNGWEID received new cases from China, India, Indonesia, Nepal, Philippines, Russian Federation, Thailand and Uzbekistan. It already had on its backlog more than 14,000 cases from Afghanistan, Bangladesh, Cambodia, Kazakhstan, Kuwait, Laos People’s Democratic Republic, Lebanon, Malaysia, Myanmar, Pakistan, Palestine, Saudi Arabia, Sri Lanka, Tajikistan, Timor-Leste, Turkmenistan, United Arab Emirates and Yemen. Due to the gravity of the situation, the UNGWEID carried out a visit to Nepal in December 2004. UNGWEID, Report on the Mission to Nepal, E/CN.4/2005/65/Add.1, 27 December 2005. The UNGWEID had previously visited Sri Lanka twice (1992, 1999), which was considered to be the country with the highest reported number of disappearances in the world. AFAD, the most important non governmental organization in the region, is a federation of national organizations of relatives of disappeared persons. It was founded on 4 June 1998, on the initiative of the association FIND “Families of the Victims of Involuntary Disappearances”, a Philippine non governmental organization.

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reported from Timor-Leste,172 India (Kashmir), Indonesia, the Philippines, Pakistan, Sri Lanka and Thailand.173 Several cases have been reported as well from China174 and Nepal.175 As regards Timor-Leste,176 a repressive regime was established in the territory after the Indonesian invasion and occupation in 1975. The military allegedly resorted to intelligence operations, arrests without warrants and summons of a specific nature, formulation of policies legitimizing the repression of the freedom of movement, mass murders carried out both by the regular army and by paramilitary groups known as militias. On August 2000, the Association of Missing People was created in Dili. Since then it has been trying to establish the fate and whereabouts of the disappeared people. However, the legal proceedings against the presumed perpetrators are facing several obstacles.177 Another area which is deeply affected by the phenomenon of enforced disappearances is Kashmir. Since 1947 this region has been divided between India and Pakistan. Several years ago armed rebellion broke out in the region. Since then there have been many victims of enforced disappear-

172

173

174

175

176 177

Final Report of the Truth and Reconciliation Commission for Timor-Leste, Chega!, Jakarta, 2005. See infra 1.8. Data collected by AFAD are the most complete regarding the whole Asian region. They might be compared with the ones reported by some other international non governmental organizations, such as Amnesty International or Human Rights Watch, and they usually correspond. Unluckily, apart from the Sri Lankan case, there are no governmental sources, so that no comparison in this sense may be attempted. In the case of Sri Lanka, the government officially admitted to and reported 16,742 cases of enforced disappearances, while the associations of the relatives denounce some 60,000 cases. In China, some 3,000 cases of enforced disappearances have been reported as the consequence of the massacre of 4 June 1989 alone (Tienamen Massacre). The relatives of the people who disappeared have been prevented by the government from denouncing the disappearances. However, a group of women founded the association “Mothers of Tienanmen”. Several years later, these 3,000 young men and women still remain unaccounted for. No trials or investigations have been carried out since. The “Mothers of Tienanmen” have been the victims of several attacks and continuous anonymous threats. See, inter alia, Linking Solidarity, Boletín Informativo, Amsterdam, 2003. See, inter alia, the Web pages of Amnesty International (http://www.amnesty.org) and Human Rights Watch (http://www.hrw.org). E/CN.4/2006/56, supra note 35, paras. 533–538. On the situation in Timor-Leste see, in particular, Commission for Reception, Truth, and Reconciliation Timor-Leste, Final Report Chega!, supra note 172, chapter on “Unlawful Killings and Enforced Disappearances”, p. 63.


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ance. Members of the association of the families of the disappeared went on hunger strike from 17 to 24 April 2003. On that occasion the Indian government admitted that from 2000 to 2003, instead of the 60 cases previously officially recognized, 3,744 people had disappeared. Since 1990 several complaints have been presented to the courts in Kashmir but not a single case has been solved. In Indonesia there were several cases of enforced disappearance during the dictatorship of Suharto allegedly for political reasons (many of the victims who disappeared were members of the Students’ Movement of Protest).178 However, disappearances have not ceased and they frequently occur for reasons linked to banned religious activities and agrarian conflicts. Three provinces of the country, which are still conflict-ridden (Papua, Aceh and Moluccas) are the most affected by the phenomenon. In March 2003 members of the local session of AFAD were made disappear in Aceh.179 As regards the Philippines, human rights violations were rampant during the time of President Ferdinand Marcos, especially when martial law was in force. The scenario was that both in the cities and in the countryside people were suddenly abducted, detained and tortured; some were found dead after a day or two; others were displaced as the nearby areas of their own communities became battle grounds between government military forces and rebel groups (in particular the New People’s Army). More than 1,750 cases of enforced disappearance were reported. In November 1985 the non governmental organization FIND (Families of Victims of Involuntary Disappearance) was founded by eight families of victims. The organization has exhumed a total of 35 remains and is active in lobbying the Philippine House of Congress, where a bill concerning enforced disappearance presented by FIND is under consideration (Act Criminalizing Enforced or Involuntary Disappearances).180 In Thailand over 293 cases were reported after the democratic government was toppled in 1992. Demonstrations held in May 1992 were brutally suppressed and resulted in a number of enforced disappearances.181 178 179

180 181

E/CN.4/2006/56, supra note 35, paras. 272–283. In 2004 the area was severely affected by the tsunami and the local office of IKOHI (the local non governmental organizations affiliated to AFAD) was destroyed by it. For understandable reasons, it was not legally registered. At present the members of the office remain unaccounted for. E/CN.4/2006/56, supra note 35, paras. 422–431. Ibid., paras. 526–532.

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In China most of the cases of disappearance reported to the Working Group on Enforced or Involuntary Disappearances occurred between 1988 and 1990, as well as between 1995 and 1996. The majority of these cases concerned Tibetans, 19 of them monks, who were allegedly arrested in Nepal and handed over to the Chinese authorities. A further 13 cases concerned Falun Gong religion practitioners who were allegedly arrested or abducted in 2000 and 2001 by police, security services or local administrative officials.182 In Nepal the majority of the cases reported to the Working Group occurred between 1998 and 2005 in the context of counter-insurgency operations launched by security forces against members and supporters of the Communist Party of Nepal (Maoist), which had declared a “people’s war” in February 1996. In the first phase of the conflict, disappearances occurred during police operations (1998). As security operations intensified, the number of cases reported increased, particularly after November 2001, following the declaration of a state of emergency and the deployment of the army. After the breakdown of a seven-month ceasefire on 27 August 2003, there was a rapid escalation in the number of disappearances. Most cases concerned people who were arrested by unidentified security forces personnel in plain clothes and taken from their homes, often at night or in the early morning. Although disappearances were taking place across the country, the majority of the cases reported to the Working Group occurred in and around Kathmandu and other districts in central Nepal. The reported victims included women, students, businessmen, farmers, workers, a writer, a government employee and human rights defenders. The disappearances were attributed to security personnel, the armed forces and the police.183 The majority of the 528 cases of disappearance reported in Iran occurred between 1981 and 1989. Some of these cases concerned people who were reportedly arrested and imprisoned for their membership of armed opposition groups. Other cases included a writer, four students, a journalist and eleven Iranian Baha’í.184

182 183

184

Ibid., para. 150. See, in general, paras. 145–152. Ibid., para. 384. See, in general, paras. 370–391. See, also, E/CN.4/2005/65/Add.1, supra note 170. E/CN.4/2006/56, supra note 35, para. 289. See, in general, paras. 284–292.


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In Iraq the majority of the previously reported cases of disappearance regard people of the Kurdish ethnic group who disappeared in 1988, in the context of the so-called “operation Anfal”, when the government implemented a programme of destruction of villages and towns throughout Iraqi Kurdistan. A significant number of cases concerned Shia Muslims who are reported to have disappeared in the late 1970s and early 1980s in the course of the expulsion of their families to Iran. Other cases occurred in the aftermath of the March 1991 uprising by Arab Shia Muslims in the south and by Kurds in the north. A particularly serious situation occurs in Sri Lanka within the conflict between the Tamil Tigers and the State authorities of Sri Lanka.185 From 1987 until 1991 there have been around 1,000 cases of involuntary disappearance. In 1992 the government adopted a law giving more power to the armed forces and authorized the use of secret detention camps. In 1994 a new government came to power with the promise to reduce the number of disappearance cases and prosecute the perpetrators. After pressure from the non governmental organizations and international community, the government created three commissions to investigate involuntary disappearances in the North and East of the country. Of the 60,000 cases reported, the government admitted 16,742. Only 5,000 families of victims have received compensation. The commissions recommended the prosecution of 500 people. Most of the accused were eventually acquitted by the courts. The United Nations Working Group on Enforced or Involuntary Disappearances had on its files 12,277 reported cases of enforced disappearances which it could not clarify during 8 years of work. After an exchange of data with the commissions, the Working Group clarified 5,377 cases and took them out of its backlog. 1.7.C

Africa

In its annual reports, the African Commission on Human and People’s Rights mentioned, among various human rights issues raised by non governmental organizations, the existence of the practice of enforced disappearance within the African continent:186

185 186

Ibid., paras. 484–492. African Commission on Human and People’s Rights, Final Communiqués of Ordinary Sessions, May 1999, November 1999, May 2000, May 2001, October 2001, May 2002,

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Various NGOs expressed their concern regarding the deterioration of the human rights situation in certain parts of the continent. These violations include extra-judicial, summary and arbitrary executions, arbitrary arrests and detentions, inhuman conditions of imprisonment and detention, restrictions to the freedoms of expression, movement and association, military coups d’état, forced disappearances, violations against women and children in countries engaged in armed conflict.187

The United Nations organs, and in particular the Commission on Human Rights and the Working Group on Enforced or Involuntary Disappearances, while delivering country reports,188 have hinted in general terms at the existence of the practice of enforced disappearances within the African area (e.g. Morocco and Algeria). But to date no specific action or programme has been undertaken. In fact, according to data provided by non governmental organizations, cases of enforced disappearance do frequently occur in several African countries. In Algeria, Egypt, Mauritania and Morocco (Western Sahara), thousands of men and women have been reported as having disappeared and many instances remain unaccounted for until now. In most cases the victims were involved in activities of political opposition, were human rights activists or trade unionists. The characteristics of the phenomenon recall the past Latin American context and systematic practice. It was reported that, in Algeria, the arrest and disappearance of thousands of men by security forces and State-armed militias during the 1990s, and in particular between 1994 and 1998, left several thousand relatives, the majority of them women, without knowledge of the fate or whereabouts of their husbands, fathers, sons or brothers. Non governmental organizations stated that families of the victims of enforced disappearance are reportedly denied the right to adequate redress (including restitution, compensation, rehabilitation, satisfaction and guarantees not to be forcibly caused to disappear again), the right to family life and various economic, social and cultural

187

188

October 2002, May 2003. African Commission on Human and People’s Rights, 12th Annual Activity Report, AHG/215 (XXXV), 1998–1999; 14th Annual Activity Report, AHG/229 (XXXVII), 2001–2002; and 16th Annual Activity Report, AHG/215 (XXXV), 2002–2003. The same paragraph appears in all the final reports and annual activity reports mentioned supra note 186. The UNGWEID is repeatedly asking the government of Morocco and Algeria to allow it to carry out a visit to the country. E/CN.4/2006/56, supra note 35, paras. 39, 55–78 and 351–357.


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rights. Women are reportedly forced to request the issuance of a declaration of absence from judges and officials, who are often the same persons denying or concealing the whereabouts of their husbands or other relatives. According to the reports, some women have refused to initiate the procedure to issue a declaration of absence owing to fear or because it allows the public prosecutor to declare the disappeared person dead without conducting an investigation.189 In Sudan, the majority of the 323 cases of disappearance reported in the past concerned 249 villagers who were allegedly abducted from the village of Toror in the Nuba Mountains in 1995 by the armed forces and taken to a government controlled “peace camp”. Another 54 disappeared people were mainly members of the Sudan Liberation Army who were allegedly arrested after clashes with government forces in Dissa and Abu Gamra in June and August 2003.190 Other references to the existence of cases of enforced disappearance within the African region may be found in some of the communications received and analyzed by the African Commission on Human and Peoples’ Rights.191 The most detailed indication of cases of enforced disappearance can be found in the Activity Report adopted in 2001–2002 and relates to the violations allegedly committed in Burkina Faso against the Mouvement Burkinabé des Droits de l’Homme et des Peuples, founded in 1991, after the re-establishment of the rule of law within the country. Sub-Saharan countries are also allegedly experiencing the practice of enforced disappearance, but with different characteristics. Massive disappearances are related to ethnic discrimination, often carried out in situations of internal armed conflicts and frequently resulting in extra judiciary killings and mass graves.

189

190 191

Ibid., paras. 65–67. See, in general, paras. 55–78. See also HRC, Case Bousroual v. Algeria, Communication No. 992/2001, 24 April 2006, and Case Boucherf v. Algeria, Communication No. 1196/2003, 27 April 2006 (infra 2.2.P and 2.2.Q). Ibid., para. 511. See, in general, paras. 493–515. African Commission on Human and People’s Rights, 16th Annual Activity Report, AHG/215 (XXXV), 2002–2003, supra note 186, para. 51: “(. . .) The government of Ethiopia also argues that the allegations presented in this communication have been submitted to the Claims Commission. They state that (. . .) they made claims for the unlawful treatment of Ethiopian nationals living in Eritrea, including arbitrary detention, mass internment, torture, abuse, murder, forced disappearances, forced conscription into the military, confiscation of property and systematic rape of Ethiopian women”.

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In its 2005 Report the United Nations Working Group on Enforced or Involuntary Disappearances stressed the likely existence of many unreported disappearances: The Working Group remains concerned that while Africa has been racked by armed conflicts over the last decade, at the same time it is the region with the fewest reported cases of enforced or involuntary disappearances. The Working Group suspects that it is dealing with an underreported phenomenon of disappearances. Underreporting was also noted this year in the Working Group’s country visit Report on Colombia and it certainly exists in other countries, but the African case is particularly dramatic. The unfolding humanitarian disaster in Darfur, Sudan, is a striking, but not unique, example of this phenomenon. Underreporting is due to a combination of factors including weaknesses of civil society groups, absence of non-governmental local human rights organizations, and lack of encouragement and support, including financial support, from counterparts in the North. The Working Group is concerned that underreporting of disappearance in certain regions and countries is also due to government restrictions on, or active disruption of, civil society work on this sensitive issue.192

1.8

The Role of Truth and Reconciliation Commissions

At the national level the fight against the reoccurrence of enforced disappearances, as well as other widespread and serious violations of human rights, has also been carried out through the establishment, in several countries, of a special body entrusted with the mandate of searching for the truth and publicly reporting it. Once violence, injustice and lack of political and social equality come to an end, countries which have experienced situations of internal armed conflicts and massive violations of human rights must face the question of the needs of the victims and the treatment of those responsible for the past crimes. How can societies which have been destroyed, or at the very least severely damaged, be rebuilt? How can justice be done and peace and reconciliation be re-established at the same time? Historically the leaders of many dictatorial regimes have tried to eliminate the chance of being prosecuted and sanctioned for their crimes by the adoption of wide amnesty laws or similar measures. Such a solution leaves a vast sense of dissatisfaction within the society as it means impunity. But

192

E/CN.4/2006/56, supra note 35, para. 593.


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also instances of the “justice of the winners” may raise serious doubts and cause the festering of open wounds instead of contributing to the real reconciliation of the people. As an answer to the call for justice and the need for reconciliation after internal armed conflicts, during the last decades more than twenty-five Truth and Reconciliation Commissions have been created worldwide.193 These are bodies mandated with mainly investigating powers to try to establish the historical truth about what has happened in a country. They are created to help societies which have gone through situations of political violence or internal conflicts to face their past in view of overcoming traumas and trying to avoid the possible repetition of crimes. It is only by the reconstruction and disclosure of the truth that a real future reconciliation might come. In most cases Truth and Reconciliation Commissions do not have judicial powers. It often happens that the data they collect and publicly release in final reports are afterwards handled to the domestic judicial authorities which may start criminal proceedings. The main function of the Commissions is to try to establish the real causes of the violence, to identify the agents and the facts of the conflicts, denouncing the most serious crimes and, in some cases, publicly naming those found to be criminally responsible, without any possibility of judging, condemning or sanctioning them. In certain cases the disclosure of the truth by those who are responsible for human rights violations may enable them to obtain pardon for their crimes. The establishment of these bodies may be the result of the initiative undertaken by new governments or take place under the auspices and supervision of international organizations. Sometimes Truth and Reconciliation Commissions may also come about as a result of autonomous initiatives by activists and relatives of victims of human rights violations.194

193

194

See, inter alia, P.B. Hayner, “Fifteen Truth Commissions – 1974 to 1994: A Comparative Study”, Human Rights Quarterly, 1994, pp. 597–655; E. Cuya, Las Comisiones de Verdad en América Latina, 1999, in the Web page http://www.derechos.org/koaga/iii/1/ cuya.html; and H. Steiner, P. Alston, “Massive Tragedies and Truth Commissions”, in International Human Rights in Context – Law Politics, Morals, Oxford, 2000. Examples of Commissions created by the civil society might be found, inter alia, in Brazil, where a Final Report known as Brasil Nunca Mais (1985) was drafted under the supervision of Cardinal Paulo Evaristo Arns and Reverend Jaime Wright (the report documented 125 cases of enforced disappearances carried out for political reasons by the military regimes which ruled the country between 1964 and 1979), and in Paraguay, where the initiative was undertaken by the Comité de Iglesias para Ayudas de Emergencias (the Final Report

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The first experience of such a Commission was the National Commission of Inquiry into Disappearances, created in Bolivia on 28 October 1982 by Supreme Decree No. 241.195 The last Truth Commissions which have been established so far are the Commission for Reception, Truth and Reconciliation for East Timor and the Truth and Justice Commission for Paraguay.196 While others too would deserve consideration,197 three instances of Truth and Reconciliation Commissions will be analysed hereunder: Argentina, El Salvador and Guatemala. The first, which was established as the result of a domestic initiative, dealt only with the issue of enforced disappearances. The second and the third, both established as a result of negotiation processes carried out under the sponsorship of the United Nations to end internal armed conflicts, dealt with a number of human rights violations (among which also enforced disappearances).

195

196

197

was released in May 1990 and documented more than 360,000 illegal arrests carried out for political reasons, the forced displacement of 1,500,000 persons – out of a total population of 3,000,000 persons – and at least 200 disappearances that occurred during the 35-year long dictatorship of General Alfredo Stroessner). It carried out its duties until April 1983. It investigated the murder of 14 political prisoners held since 1972 by the regime Hugo Banzer and 22 alleged disappearances which occurred during the dictatorship of General García Meza. Commission for Reception, Truth, and Reconciliation Timor-Leste, Chega!, supra note 172. The Truth and Justice Commission for Paraguay is still carrying out its mandate. It was established under Law 2225, 15 October 2003. Experiences such as the National Commission of Inquiry into Disappearances in Bolivia or the National Truth and Reconciliation Commission of Chile would also be interesting examples to analyze as they represent ad hoc bodies set up especially to deal with the phenomenon of enforced disappearances. In fact their final reports contain a detailed reconstruction of the characteristics of the offence and the practice of enforced disappearances, together with conclusions and recommendations to prevent its reoccurrence. The Chilean Truth Commission was created by Supreme Decree No. 355, 24 April 1990. It was composed of eight members who carried out the duty to investigate the facts that resulted in the deaths or disappearances perpetrated in Chile and abroad between 11 September 1973 and 11 March 1990 under the military dictatorship of General Augusto Pinochet. It documented some 7,000 cases of enforced disappearances, although human rights non governmental organizations denounce at least 15,000 cases.


1.8.A

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Argentina

After the restoration of democracy in Argentina, CONADEP (Comisión Nacional sobre la Desaparición de Personas) was established under Law Decree No. 187/83 of 15 December 1983.198 It had the mandate to investigate the fate of the thousands who disappeared during the junta rule. The Commission was entitled to receive depositions and evidence concerning these events and pass the information to the courts, in those cases where crimes had been committed. The Commission’s Report could not determine responsibility, but only deliver an unbiased chronicle of the events. To guarantee objectivity, the national executive resolved that the commis-sion be composed of individuals who enjoyed national and international prestige, chosen for their consistent stance in defence of human rights. They would represent different walks of life and political affiliations or ideologies. CONADEP has presided over hearings of thousands of cases of abduction, disappearance, torture and executions. It compiled over 50,000 pages of reporting. Every individual case was documented in a numbered file. A shocking summary was published as an official report in Spanish in 1984, named Nunca más! – Never again! The Report has an introduction written by the President of the Commission, five substantive parts199 and a final session of conclusions and recommendations.

198

199

The reported total number of disappeared men, women and children between 1976 and 1983 was 8,960. But this could not be considered as the real figure, as many cases were still pending or to be investigated, the total number of cases of enforced disappearances being likely to be much higher. Human rights activists and non governmental organizations working in the field denounced more than 30,000 cases. The Final Report of the CONADEP named nine military commanders as the main people responsible for the crimes committed, namely Jorge Rafael Videla, Roberto Vida, Leopoldo Galtieri, Orlando Agosti, Omar Graffigna, Basilio Lami Dozo, Emilio Massera, Armando Lambruschini and Jorge Isaac Anaya. The CONADEP found the responsibility of the former president and director of the military Academy, Reynaldo Bignone, in hundreds of disappearances. Rubén Chamorro was singled out for the setting up and maintenance of the concentration camp held within the Escuela de Mécanica de la Armada and Ramón Camps and Guillermo Suárez Masón for their participation in the carrying out of thousands of enforced disappearances. Part I, “The Repression”; Part II, “The Victims”; Part III, “The Judiciary During the Repression”; Part IV, “Creation and Organization of the National Commission on the Disappeared”; and Part V, “The Doctrine behind the Repression”.

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The historical importance of the document is also due to the fact that in 1984, when it was adopted, the phenomenon of disappearance was still substantially unexplored. No international legal instrument, either binding or not, had referred to an offence of enforced disappearance as such, nor had any international court delivered a binding judgment on a case of enforced disappearance. In his introduction to the Report President Ernesto Sábato described the overall climate regarding the practice of enforced disappearances in these terms: The abductions were precisely organized operations, sometimes occurring at the victim’s place of work, sometimes in the street in broad daylight. They involved the open deployment of military personnel, who were given a free hand by the local police stations. When a victim was sought out in his or her home at night, armed units would surround the block and force their way in, terrorizing parents and children, who were often gagged and forced to watch. They would seize the persons they had come for, beat them mercilessly, hood them, then drag them off to their cars or trucks, while the rest of the unit almost invariably ransacked the house or looted everything that could be carried. The victims were then taken to a chamber over whose doorway might well have been inscribed the words Dante read on the gates of Hell: ‘Abandon hope, all ye who enter here’, Thus, in the name of national security, thousands upon thousands of human beings, usually young adults or even adolescents, fell into the sinister, ghostly category of the desaparecidos, a word (sad privilege for Argentina) frequently left in Spanish by the world’s press. Seized by force against their will, the victims no longer existed as citizens. Who exactly was responsible for their abduction? Why had they been abducted? Where were they? There were no precise answers to these questions: the authorities had no record of them; they were not being held in jail; justice was unaware of their existence. Silence was the only reply to all the habeas corpus writs, an ominous silence that engulfed them. No kidnapper was ever arrested, not a single detention centre was ever located, there was never news of those responsible being punished for any of the crimes. Days, weeks, months, years went by, full of uncertainty, and anguish for fathers, mothers and children, all of them at the mercy of rumours and desperate hopes. They spent their time in countless attempts at wringing information from those in authority: whether officers in the armed forces who were recommended to them, bishops, military chaplains or police inspectors. They received no help. A feeling of complete vulnerability spread throughout Argentine society, coupled with the fear that anyone, however innocent, might become a victim of the never-ending witch-hunt. Some people reacted with alarm.200

200

CONADEP, Nunca Más – Never Again, supra note 41, Prologue.


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Further, the President of the Commission described the practice of violations of mortal remains of material victims of enforced disappearance: Deprived of all communication with the outside world, held in unknown places, subjected to barbaric tortures, kept ignorant of their immediate or ultimate fate, they risked being either thrown into a river or the sea; weighed down with blocks of cement, or burned to ashes.201

CONADEP reported that there was a wide variety of victims: trade union leaders fighting for better wages; members of student unions; journalists who did not support the regime; psychologists and sociologists simply for belonging to suspicious professions; young pacifists; nuns and priests who had taken the teachings of Christ to shanty areas; the friends of these people, too, and the friends of friends, as well as others whose names were given out of motives of personal vengeance or by the kidnapped under torture. The vast majority of them were innocent not only of any acts of terrorism, but even of belonging to the fighting units of the guerrilla organizations.202 The recommendations formulated by CONADEP are of particular interest as instances of measures that, if duly adopted, can prevent the reoccurrence of the horror experienced by Argentina: The facts presented to this Commission in the depositions and testimonies speak for themselves. They lead us to recommend to the various State authorities certain measures which will help to ensure that this curtailment of human rights is never repeated in Argentina. The aim of these recommendations is also to press for a judicial investigation into the facts denounced to us. We therefore recommend: a) That the body which replaces this Commission speeds up the procedures involved in bringing before the courts the documents collected during our investigation. b) That the courts process with the utmost urgency the investigation and verification of the depositions received by this Commission. c) That the appropriate laws be passed to provide the children and/or relatives of the disappeared with economic assistance, study grants, social security and employment and, at the same time, to authorize measures considered necessary to alleviate the many and varied family and social problems caused by the disappearances.203

201 202

203

Ibid. On the issue of the respect for mortal remains, see infra 4.12. Ibid., Prologue and Part II on “The Victims”. Special attention has been paid to the phenomenon of the disappearance of children (infra 4.14). On the concepts of “just satisfaction” and “reparations” in cases of enforced disappearances, see infra 4.13.

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d) That laws be passed which: 1. Declare forced abduction a crime against humanity.204 2. Support the recognition of and adhesion to national and international human rights organizations. 3. Make the teaching of the defence and diffusion of human rights obligatory in state educational establishments, whether they be civilian, military or police.205 4. Strengthen and provide ample support for the measures which the courts need to investigate human rights violations. 5. Repeal any repressive legislation still in force.

Unfortunately, notwithstanding the recommendation of CONADEP to proceed with the utmost urgency with the investigation of the depositions to the Commission and the sanctioning of those responsible, two broad amnesty laws were enacted, granting impunity to perpetrators of enforced disappearances and other violations of human rights,206 namely the Ley 23.492 “Punto Final ” (Full Stop), adopted on 24 December 1986, and the Ley 23.521 “Obediencia Debida” (Due Obedience) adopted on 8 June 1987. They granted the extinction of the criminal action for crimes committed during the military regimes and introduced the presumption that such crimes were committed as part of due obedience by the military.207 These two laws, that concretely denied the right to justice and to truth of the relatives of thousands of disappeared, were unsuccessfully challenged for many years. Only on 14 June 2005 did the Supreme Court of Argentina declare their unconstitutionality and nullity.208 In this ruling the highest court in the country established the obligation of the State to investigate and punish the crimes committed during the dictatorship, declared the unpardonable nature of these crimes and rejected impunity for those who would be held responsible.

204 205

206 207

208

On the nature of enforced disappearances as crimes against humanity, see infra 4.3. On the importance of teaching and diffusion of human rights obligatory in military and police establishments, see IACHR, Case Masacre de Mapiripán, supra note 54. On the issue of amnesty, pardons and similar measures, see infra 4.8. However, a few among the main people responsible for the crimes (Videla, Massera, Viola, Lambruschini, Agosti) were prosecuted and convicted. See the judgment rendered on 9 December 1985 by the National Court of Appeal of Argentina (ILM, 1986, p. 359). Corte Suprema, Buenos Aires, 14 June 2005, S.1767.XXXVIII, Simón, Julio Héctor y otros s/ privación ilegítima de la libertad, etc.


1.8.B

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El Salvador

The Truth Commission for El Salvador was established by the Mexico City Agreements on 27 April 1991,209 negotiated between the government of El Salvador and the insurrectional movement Frente Farabundo Martí para la Liberación Nacional (FMLN), after an internal armed conflict which lasted for twelve years. It was established under the auspices of the United Nations and through the diplomatic efforts of Colombia, Mexico, Spain and Venezuela. The Mexico City Agreement provided that the Secretary General of the United Nations was to appoint three commissioners after consultations with the Parties to the conflict. They were given six months to submit a Final Report including conclusions and recommendations and to transmit the Report to the Parties and to the Secretary General of the United Nations, who could make it public and take the decisions or initiatives deemed appropriate. The mandate established that: The Commission shall be entrusted with the task of investigating serious acts of violence that have occurred since 1980 and whose impact on society urgently requires that the public should know the truth. The Commission shall take into account: a) The exceptional importance that may be attached to the acts to be investigated, their characteristics and impact, and the social unrest to which they gave rise; and b) The need to create confidence in the positive changes which the peace process is promoting to assist the transition to national reconciliation. The mandate of the Commission shall include recommending the legal, political or administrative measures which can be inferred from the results of the investigation. Such recommendations may include measures to prevent the repetition of such acts, and initiatives to promote national reconciliation. [. . .] The Commission shall not function in the manner of a judicial body.210

209

210

The whole negotiating process had lasted three years and was concluded in Chapultepec, Mexico City, on 16 January 1992. The Truth Commission recognized as its own mandate the Annex of the Mexico Agreement of April 1991 and Article 5 of Chapultepec Peace Agreement of January 1992, “End to Impunity: The Parties recognize the need to clarify and put an end to any indication of impunity on the part of officers of the armed forces, particularly in cases where respect for human rights is jeopardized. To that end, the Parties refer this issue to the Commission on Truth for consideration and resolution”.

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The mandate did not list or identify any specific crimes for investigation; nor did it distinguish between large scale acts of violence and acts involving only a handful of people. Instead it emphasized the seriousness of acts of violence and their impact or repercussions. On the basis of these criteria, the Commission investigated two types of cases: a) individual cases or acts which, by their nature, outraged Salvadorian society or international opinion; b) a series of individual cases with similar characteristics revealing a systematic pattern of violence or ill-treatment which, taken together, equally outraged Salvadorian society, especially since their aim was to intimidate certain sectors of that society. The Commission took into account two additional factors which had a bearing on the fulfilment of its mandate. First, it was entitled to investigate serious or flagrant acts committed by both sides of the Salvadorian conflict and not just by one of the Parties. Second, in referring to the Commission the issue of the impunity of officers of the armed forces, particularly in cases where respect for human rights was jeopardized, the Commission had to pay particular attention to this area and to acts of violence which had never been investigated or punished. The official mandate of the Truth Commission did not specify the principles of law that had to be applied in order to define such acts and to determine responsibility for them. In this regard the Commission, in its Final Report delivered on 15 March 1993,211 pointed out that during the Salvadorian conflict both Parties were under an obligation to observe a number of rules of international law, including those stipulated in international human rights law or in international humanitarian law212 or in both. The Commission further specified that throughout the period in question, the State of El Salvador was under an obligation to adapt its domestic legislation to its obligations under international law.213 When insurgents assume government powers in territories under their control (and this was the case of FMLN), they too can be required to observe certain human rights obligations that

211

212

213

United Nations, From Madness to Hope – The 12-years War in El Salvador, 15 March 1993. Specific reference is made to Article 3 common to the Four Geneva Conventions of 1949 and the Additional Protocol II thereto. According to the Truth Commission for El Salvador, the applicable legal framework as regards human rights law included the following binding instruments: the Charters of the United Nations and OAS, the International Covenant on Civil and Political Rights and the American Convention on Human Rights.


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are binding on the State under international law. This would make them responsible for breaches of those obligations. The Commission decided to name the names of those found to be responsible in its Final Report. It felt that, without this information, the whole truth could not be told.214 The Commission in its Final Report registered more than 22,000 complaints of serious acts of violence that occurred in El Salvador between January 1980 and July 1991. Over 60% of all complaints related extra-judicial executions, over 25% related enforced disappearances and over 20% included complaints of torture. Those giving testimony attributed almost 85% of cases to agents of the State, paramilitary groups allied to them and the death squads. None of the three branches of the State – judicial, legislative or executive – was capable of restraining the military’s overwhelming control of society. Impunity vis-à-vis the civilian authorities became the rule. In general, the disappearance of large numbers of people, the assassination attempts of important government officials, church leaders and judges, as well as the climate of corruption and weakness within the judiciary and its investigative bodies greatly impeded the effective functioning of the judicial system.215

214

215

According to the Final Report, in the Salvadorian conflict there was an initial period where violence became systematic, while terror and distrust reigned among the civil population: this happened between 1980 and 1983, when the fragmentation of any opposition or dissident movement by means of arbitrary arrests, murders and selective enforced disappearances became a common practice. During the years between 1983 and 1987, violations of life and physical integrity and security continued to occur in urban centres: the total number of violations fell but it was accompanied by greater selectivity. Between 1987 and 1989, progress was made in what the Truth Commission afterwards termed “the humanization of the conflict”. Nevertheless, there was a resurgence of the violence, with a definitive increase in attacks on the labour movement, human rights groups and social organizations. FMLN carried out a campaign of abductions, summary executions and murders against civilians affiliated with or sympathetic to the government and the armed forces. The army thus reverted to the practice of mass executions. On 11 November 1989 FMLN launched the biggest offensive in the war, just a few days after the bombing carried out by the Salvadorian army of the headquarters of FENESTRAS (Federación Nacional Sindical de Trabajadores Salvadoreños). The impact of the offensive on the capital and other cities led the government to decree a state of emergency and, beginning on 13 November, curfew went into effect. It has been established that the acts of violence originated in a political climate where opponents were considered to be subversive enemies. Any organization in a position to promote ideas that questioned the official policy was labelled as working for the guerrillas. Counter-insurgency policy found its most extreme expression in a general practice

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The Commission further registered more than 800 complaints of serious acts of violence attributed to the FMLN. This violence occurred mainly in conflict zones, over which the FMLN at times maintained military control. Nearly half of the complaints against FMLN concerned deaths, mostly extrajudicial executions. The rest concerned kidnappings and forcible recruitment. The Commission was not able to verify the existence of general directives from the FMLN leadership to its constituent organizations authorizing enforced disappearances, even if some 300 cases of disappearances occurred in the areas where FMLN exercised military control. Nevertheless, links were observed between disappearances, forcible recruitment by FMLN and cases of extra-judicial execution of FMLN members labelled spies or traitors. Besides FMLN and the official army, the Commission found the existence of a network of illegal armed groups, known as “death squads”, which operated both within and outside the institutional framework, spreading terror throughout Salvadorian society. These squads originated as an operation designed, financed and controlled by civilians to defend themselves. The core of serving officers, whose role was originally limited to that of mere executioners, gradually seized control of the death squads for personal gain or to promote certain ideological or political objectives. In its final findings the Commission established that the majority of cases of enforced disappearances were committed by members of the regular army or of the paramilitary, while revolutionary groups usually resorted to kidnappings for ransom or exchanges of prisoners.216 The Commission decided to analyze some cases of enforced disappearances considered to be representative of acts of violence with great impact on Salvadorian society. The first instance concerned Francisco Arnulfo Ventura and José Humberto Mejia, who were both law students at the University of El Salvador. They were arrested by members of the National Guard in the parking lot of the United States Embassy on 22 January 1980217 after a student demon-

216

217

of “cutting the guerrillas’ lifeline”. The inhabitants of areas where the guerrillas were active were suspected of belonging to the guerrilla movement or of collaborating with it and ran the risk of being eliminated. In the early years of the Eighties the violence in rural areas was indiscriminate in the extreme. The Commission reflects this situation by speaking, as the case may be, of either “enforced disappearance” or “abduction”. During the morning of 22 January 1980, a student demonstration marched from the University of El Salvador to the centre of San Salvador. It was violently dispersed by Security forces in front of the Cathedral. On that occasion, a number of people were killed or seriously harmed or injured.


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stration. According to witnesses, members of the National Guard handed the students over to some men in civilian clothing who drove off in a private car. Despite the investigations carried out since that date, the whereabouts and the fate of the students still remain unknown. Their relatives, backed by the AGEUS (Asociación General de Estudiantes Universitarios Salvadoreños), begun to search for them and filed writs of habeas corpus. At the same time, the Chief State Counsel, Mario Zamora, filed a complaint with the Second Criminal Court. Testimony was heard from relatives of the disappeared students. The court also requested information from the United States Embassy and the National Guard, without receiving any reply. On 22 February 1980, the Supreme Court authorized the judge of the Second Criminal Court to initiate an investigation into the whereabouts of the disappeared students. That same night, Mario Zamora was murdered. After that, no further investigations were carried out. Three months later, the death squad known as the Ejército Secreto Anti-Comunista published a list of names which included people who had already been murdered or disappeared, such as Monsignor Romero, Father Rutilio Grande and Chief State Counsel Mario Zamora. The names of Francisco Arnulfo Ventura and José Humberto Mejia were also on the list.218 The Truth Commission for El Salvador concluded that there was substantial evidence that El Salvador failed in its duty to investigate the accident, bring to trial and punish the guilty parties, compensate victims’ relatives and inform them of the whereabouts of the disappeared persons. The other reported case concerned Miguel Angel Rivas Hernández, aged 17, who disappeared on 29 November 1986 near the Ilopango air force base in San Salvador. As witnesses attributed his arrest to members of the air force, his family went to a military base to demand his return. However they were told that he was not being detained. Despite this official denial, the family received informal confirmation that the boy was at the base. They reported his disappearance to human rights organizations. In January 1987 the boy was allegedly transferred to the National Guard central barracks in San Salvador. In this case too, all attempts to establish the fate and whereabouts of the boy failed and investigations and searches were severely obstructed.

218

At the end of the list there was an exhortation which read: “help us get rid of all these traitors and criminal communists. The country will thank you for it”. In its Final Report, the Truth Commission considered that then Colonel Eugenio Vides Casanova was guilty at least of complicity through negligence and obstructing the resulting judicial investigation for the disappearance of the two students.

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The Truth Commission found that El Salvador failed in its responsibility under international human rights law to investigate the case and to bring to trial and punish those responsible. As resulting from the testimonies collected by the Truth Commission, the boy was not in any way involved in political activities. His disappearance, like that of many others, was carried out as part of a strategy aimed at spreading terror and fear among civilians by demonstrating that nobody could consider himself safe. The Truth Commission further analyzed a case of abduction carried out by FMLN, in order to demonstrate the difference in the acting of death squads, the army and the guerrillas. According to the Commission, the case in question (the abduction of Inés Duarte and Ana Cecilia Villeda) constituted a taking of hostages. While it was, as such, a violation of international humanitarian law, it was different from an act of enforced disappearance as FMLN immediately and publicly announced that it was responsible for the abduction. In the Report of the Truth Commission for El Salvador, no specific recommendations concerning enforced disappearances can be found. Nonetheless, some suggestions are very useful also in view of the prevention and punishment of enforced disappearances: Among the reforms [. . .], a simple and practical mechanism must be established to resolve the situation of subordinates who receive illegal orders, so that they are protected if they refuse to obey. The provision of Article 173 of Army regulations which requires a subordinate to obey, at all times and irrespective of risk, the orders it receives from a superior, should be repealed, and the pledge so to obey should be eliminated from the formula used when swearing the solemn oath of allegiance to the flag as a part of military ceremonial. It must be made clear, in all cases, that so called “due obedience” does not exonerate a person who carries out an order which is clearly illegal.219

Furthermore: The system of administrative detention also warrants a number of changes. This is a matter of primary importance, since violations of integrity of persons and even disappearances can occur during such detention: a) the restrictions as to which officials can order administrative detention, which officials can carry it out and for what reasons should be spelled out; b) the duration of administrative detention should be kept to the absolute minimum;

219

From Madness to Hope: The 12-year war in El Salvador, supra note 211, Final Recommendations, A) Reforms in the armed forces.


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c) the administrative authorities should be stripped of their power to impose penalties involving deprivations of liberty. Such penalties should be imposed only by the law courts, in the context of due process. It is recommended that the current system of information on detainees should be expanded. Through the Office of the National Counsel for the Defence of Human Rights, a centralized, up-to-date list should be kept of all persons detained for any reason, indicating their location and legal status. The competent authorities must inform the Office of any detention that is carried out and the personnel involved in the arrest.220

However, three days after the release of the Report of the Truth Commission, in an address to the nation the then president Alfredo Cristiani announced a general amnesty in the following terms: One also has to consider that the Report of the Truth Commission examines only a part of everything that happened in all those years of violence. And because the Report speaks of only certain cases and mentions only certain people, we have to think much more carefully about what course of action we should take. What is most important now is to see what has to be done to erase, eliminate and forget everything in the past. Our position is that it would be unjust to take legal or administrative measures against some but not others, simply because the latter did not figure in the cases examined in the Truth Commission’s Report. In this sense, our position is not to blame specific individuals, but to consider all the facts and not act on only part of the problem; it is preferable to look for a overall solution that will embrace everyone. [. . .] Therefore, we are again calling upon all sectors of the country to support a general amnesty, so that we can turn the painful page in our history and seek a better future for our country.221

On 20 March 1993 Decree 486, known as “General Amnesty Law for the Consolidation of the Peace”, was adopted.222 Since then, total impunity223

220 221

222

223

Ibid., Recommendations on the protection of human rights. Reference to the speech and transcription of relevant parts may be found in ICommHR, OEA/Ser.L/II.85, 11 February 1994. Article 1 of Decree 486 grants a “full, absolute and unconditional amnesty to all those who participated in any way in the commission, prior to 1 January 1992, of political crimes or common crimes linked to political crimes or common crimes in which the number of persons involved is no less than twenty”. Under Article 3 the Decree does not apply “to acts of terrorism wherein the individual deprives third parties of their freedom, threatens or causes their death for profit; nor does it apply to the crimes of kidnapping and extortion and drug-related crimes”. Finally, Article 4 establishes that: “the amnesty granted by this law extinguishes all civil liability”. United Nations, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, E/CN.4/2005/102/Add.1, 8 February 2005

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to perpetrators of serious crimes under international law has been granted, allegedly in order to turn over a painful page and to provide a better future for the country. The question of impunity as a consequence of amnesty or pardon legislation, which is raised in both the cases of Argentina and El Salvador (and in others as well), requires more elaboration.224 In its 1994 Report, the Interamerican Commission on Human Rights, commenting on the response received from the government of El Salvador to its reports on individual cases and on the implementation of corresponding recommendations, noted that: Unfortunately, in not one of these cases did the authorities respond to the Commission’s recommendations, follow up on its requests or recognize the compulsory jurisdiction of the Interamerican Court of Human Rights, despite the Commission’s recommendations to that effect. The Interamerican Commission on Human Rights is confident that in this new era of reconciliation and reconstruction, the Government’s attitude vis-à-vis cases being processed and those on which a Report is produced will be different from that of previous administrations and that recommendations made by the Commission in its area of competence will be implemented.225

Analyzing the compatibility of the Amnesty Law with the American Convention on Human Rights (to which El Salvador has been a Party since 1978), the Commission concluded that: The very sweeping General Amnesty Law passed by El Salvador’s Legislative Assembly constitutes a violation of the international obligations it undertook when it ratified the American Convention on Human Rights, because it makes possible a “reciprocal amnesty” without first acknowledging responsibility (despite the recommendations of the Truth Commission); because it applies to crimes against humanity and because it eliminates any possibility of obtaining adequate pecuniary compensation, primarily for victims.226

224 225 226

(hereinafter “Principles to Combat Impunity”). “Impunity” is defined as the impossibility, de iure o de facto, of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims. See infra 4.8. ICommHR, OEA/Ser.L/II.85, supra note 221. Ibid.


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In 1994 the Human Rights Committee released its comments on the situation of human rights in El Salvador. While expressing its satisfaction for a slight improvement in the country, it also added the following remark: The Committee regrets that many questions put to the delegation during the discussion remained unanswered. [. . .] The Committee expresses grave concern over the adoption of the Amnesty Law, which prevents relevant investigation and punishment of perpetrators of past human rights violations and consequently precludes relevant compensation. It also seriously undermines efforts to re-establish respect for human rights in El Salvador and to prevent a reoccurrence of the massive human rights violations experienced in the past. Furthermore, failure to exclude violators from service in government, particularly in the military, the National Police and the judiciary, will seriously undermine the transition to peace and democracy. [. . .] The Committee emphasizes the obligation of the State Party under Article 2, paragraph 3 of the Covenant to ensure that victims of past human rights violations have an effective remedy. In order to discharge that obligation, the Committee recommends that the State Party review the effect of the Amnesty Law and amend or repeal it as necessary.227

In 1995 the Interamerican Commission on Human Rights explicitly recommended to the authorities of El Salvador to “take the necessary steps to repeal the Amnesty Law, in order to investigate and punish those responsible for violating the basic rights of persons and to compensate victims”.228 Today the Salvadorian Amnesty Law is still in force, granting complete impunity to perpetrators of grave crimes under international law.229 1.8.C Guatemala The Guatemalan Commission for Historical Clarification (CHC) was established on 23 June 1994, as a part of peace agreements between the Guatemalan government and the National Guatemalan Revolutionary Unit (URNG), to investigate human rights violations perpetrated during the 36-year-long

227 228 229

HRC, Comments on El Salvador, CCPR/C/79/Add.34 (1994), paras. 3, 7 and 12. ICommHR, OEA/Ser.L/V.88 rev.1, 17 February 1995, chapter IV. See, inter alia, IACHR, Case Barrios Altos (Chumbipuma Aguirre and others) v. Peru, judgment of 14 March 2001 Ser. C No. 75 (Merits); and judgment of 3 September 2001, Ser. C No. 83 (Interpretation); ICommHR, Case 10.488, Report No. 136/99 Ignacio Ellacuría, S.J. et al., 22 December 1999; Case 11.481, Report No. 37/00, Monsignor Oscar Arnulfo Romero y Galdámez, 13 April 2000; and IACHR, Case Hermanas Serrano Cruz, supra note 11.

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armed conflict in this country.230 The Peace Agreements, signed in Oslo in 1996, were negotiated under the auspices of the United Nations, with the encouragement of the United States, the European Union and Mexico. The Truth Commission was established under the Comprehensive Agreement on Human Rights (Mexico City, 29 March 1994). Even though it was strongly opposed by the military, it entered into force immediately and the popular reaction was broadly positive. The purposes of the creation of the CHC, as stated in the mandate, were: To clarify with all objectivity, equity and impartiality the human rights violations and acts of violence that have caused the Guatemalan population to suffer, connected with the armed conflict. To prepare a Report that will contain the findings of the investigations carried out and provide objective information regarding events during this period covering all factors, internal as well as external. Formulate specific recommendations to encourage peace and national harmony in Guatemala. The Commission shall recommend, in particular, measures to preserve the memory of the victims, to foster a culture of mutual respect and observance of human rights and to strengthen the democratic process.

It was also established that the CHC “shall not attribute responsibility to any individual in its work, recommendations and report nor shall these have any judicial aim or effect”. In a public ceremony held in Guatemala City on 25 February 1999, the Final Report drawn up by the CHC entitled “Guatemala: Memory of Silence” was handed over to representatives of the Guatemalan government and URNG as well as of the United Nations Secretary General, who was put in charge of its public release. The CHC disclosed an outstanding number of serious human rights violations (including arbitrary executions, massacres, tortures, cruel, inhuman and degrading treatment, sexual violations, systematic violation of the rights of the child, forced displacement of indigenous communities and forced recruitment within the army) and drew the conclusion that the Guatemalan authorities during the 36 years of the internal armed conflict carried out a genocide

230

While the CHC was carrying out its mandate, a similar initiative was undertaken by the Guatemalan Archbishop. The results of this second Truth Commission may be read in Guatemala: Nunca más, supra note 49. As the second Commission is a substantially domestic initiative, it will not be further analyzed within this work. However, the findings of the two Commissions about the violations of human rights during the internal armed conflict do coincide.


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against the Mayan population.231 About 250,000 people were killed, the great majority of whom were indigenous people, living in the most remote areas of the country and in conditions of severe poverty. The CHC deemed State agents (members of the Army, of the National Police and of paramilitary groups) to be responsible for these killings in 93% of the cases. This genocide was carried out in the application of the National Security Policy, envisaged during those years by the authorities of the United States in order to “prevent and defeat the communist menace” all over Central and Southern America. According to this doctrine, all potential opponents of the regime had to be considered as dangerous enemies to eliminate: political leaders, trade unionists, university professors and students, human rights activists and indigenous people. One may wonder why indigenous communities could be considered as dangerous communists and revolutionary elements to eliminate. One possible response, according to the CHC, lies in the profound historical racism of the few “white Guatemalans” and of the “ladinos” (descendants of mixed marriages between whites and the native population) towards the indigenous people. Furthermore, as the indigenous population was the poorest and most exploited both by the government and by rich landowners, its members were considered to be all potential revolutionaries eager to violently change these unfair conditions which had lasted for centuries.232 Under this perverse perspective the choice was made not only to physically eliminate them, but also to destroy and erase the basis of their millenary culture, their religious beliefs, their customs and their languages. Enforced disappearances appeared to be the perfect mean to carry out such a systematic policy of terror.233

231

232

233

Final Report of the CHC, supra note 28. “In consequence, the CHC concludes that agents of the State of Guatemala, within the framework of counterinsurgency operations carried out between 1981 and 1983, committed acts of genocide against groups of Mayan people which lived in the four regions analysed”, Conclusion No. 122. The Final Report of the CHC quotes a document of the Central Agency of Intelligence of the United States of America (CIA), according to which: “La creencia, bien documentada, del Ejército que la población indígena Ixil en su totalidad está a favor del EGP (Ejército Guatemalteco Proletario, a revolutionary group) ha creado una situación en la que se puede esperar que el Ejército no dejará sobrevivientes de igual forma entre los combatientes y no combatientes”, Final Report of the CHC, supra note 28, tome III, para. 904. The CHC qualifies enforced disappearance as a “método criminal de esterminio” (criminal method of extermination).

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According to collected data, the CHC considered that during the internal armed conflict, enforced disappearances, qualified as crimes of war and crimes against humanity, represented one of the most serious and frequent violations of human rights. The practice reached its peak between 1979 and 1983.234 The majority of disappeared persons were indigenous and the phenomenon happened with more frequency within the rural areas. The CHC deemed the Army to be responsible for the enforced disappearances in 80% of the cases, the Patrullas de Autodenfensa Civil (so called PAC, paramilitary groups that backed the government and were trained and armed by the regular Army) in 12% of the cases and the National Police in the remaining 8% of the cases. Revolutionary groups and the guerrillas did not avail themselves of enforced disappearances. Instead they abducted people considered as enemies in order to demand ransom or an exchange with other political prisoners or members of their organizations. In its Final Report, the CHC analyzed the most outstanding cases of enforced disappearances, representative of the practice and its different ends and purposes: collective disappearances, child disappearances and selective disappearances. The first case reported by the CHC represents the first known instance of massive enforced disappearance and as well one of the first cases of enforced disappearance in general in all Latin America.235 According to the reconstruction of the CHC, in 1965 the Guatemalan regime, supported by the government of the United States,236 established a plan known as Operación Limpieza, in order to eliminate any kind of opposition within the country. Among the targets to be eliminated there were all the leaders of the revolutionary group MR13 and of the Partido Guatemalteco del Trabajo (hereinafter referred to as PGT), a left wing political party which had been declared clandestine after 1954, so that many of its members had chosen exile in Mexico. Between 25 and 27 February 1966 the PGT held a general meeting to elect a new leadership. Many exiles came over from Mexico to participate. During the following days, 28 members of the PGT and the revolutionary 234 235

236

Final Report of the CHC, supra note 28, tome II, para. 2035. “Los 28 desaparecidos de 1966”, Final Report of the CHC, supra note 28, Annex I, Case No. 68. “La USAID asistió técnica y materialmente al Gobierno guatemalteco. Para estos efectos, envió a su funcionario John P. Longan, asesor en seguridad pública, destacado en Venezuela. Longan llegó a Guatemala el 28 de noviembre de 1965 y tuvo como contraparte en el país al Secretario del Gobierno”. Ibid., p. 91.


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group MR13 were caused to disappear by members of the security forces (the case is historically named “the case of the 28 disappeared”: however, the CHC reported that more than 33 people disappeared on that occasion). According to the CHC, the people who disappeared were all arbitrarily killed by members of the army and their bodies were thrown from aeroplanes into the Pacific Ocean. In spite of all attempts by relatives of the victims to obtain justice, no one was ever tried and declared responsible for the more than 33 cases of disappearance. The CHC declared the highest authorities of the army and of the national police to be materially and intellectually responsible. The human rights that were considered to be violated were: the right to life, freedom from torture, inhuman and degrading treatment, rights to personal integrity (both physical and psychological) and security and, in general, the right to liberty. The CHC did not express any further consideration about autonomous violations of human rights and fundamental freedoms suffered by the relatives of the victims.237 A further effect both of the Peace Agreements and of the work carried out by the CHC was the modification of the Guatemalan Criminal Code in order to codify the offence of enforced disappearance: Comete el delito de desaparición forzada quien por orden, con la autorización o apoyo de autoridades del Estado, privare en cualquier forma de la libertad a una o más personas, por motivos políticos, ocultando su paradero, negándose a revelar su destino o reconocer su detención, así como el funcionario o empleado público, pertenezca o no a los cuerpos de seguridad del Estado, que ordene, autorice, apoye o dé la aquiescencia para tales acciones. Constituye delito de desaparición forzada, la privación de la libertad de una o más

237

Referring to a similar case of massive disappearance which happened in 1984 and regarding students of the Universidad de San Carlos de Guatemala and members of an association of relatives of the disappeared, the CHC declared: “La circunstancia de que todas las personas detenidas y posteriormente desaparecidas permanecieran durante determinado tiempo en lugares secretos, refuerza la convicción del carácter planificado de dicha política. El caso es, también, ilustrativo de la creación de un sistema clandestino de justicia para-estatal, característico de una política de ‘guerra sucia’ contra opositores políticos o sociales que no eran combatientes, lo cual debilitó en extremo el Estado de Derecho y las garantías constitucionales y contribuyó a la aceptación de la violencia y la impunidad como fenómenos normales, con grave detrimento de la cultura cívica en Guatemala”. Final Report of the CHC, supra note 28, “Desapariciones forzadas de Edgar Fernando García, Sergio Saúl Linares Morales y Rubén Amílcar Farfán (del Grupo de Apoyo Mutuo)”, Annex I, Case No. 48, pp. 152–153.

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personas, aunque no medie móvil político cuando se cometa por los elementos de los cuerpos de seguridad del Estado, estando en ejercicio de su cargo, cuando actúen arbitrariamente o con exceso de fuerza. Igualmente cometen delito de desaparición forzada, los miembros o integrantes de grupos o bandas organizadas con fines terroristas, insurgentes, subversivos o cualquier otro fin delictivo, cuando cometan plagio o secuestro, participando como miembros o colaboradores de dichos grupos o bandas. El delito se considera permanente en tanto no se libere a la víctima.238

In spite of some technical remarks which might be formulated about its wording, the very existence of this definition demonstrates the increase in the awareness of Guatemalan public opinion towards the phenomenon and represents a success of the experience of the Guatemalan Truth Commission. It constitutes the first step for reconciliation, for the possibility of a brighter future and for the restoration of the memory and the dignity of 45,000 people who disappeared. Another positive consequence due to the Final Report and recommendations of the CHC was the establishment of a National Commission of Investigation on Child Disappearances (constituted by both governmental and non governmental representatives and experts). It has been able to find some of the disappeared children who are alive, often living with a new identity after their adoption abroad. This experience as well contributes towards granting the right to truth: of the abducted children (now young men and women), of their families and indigenous communities as well as of the Guatemalan society as a whole. 238

Article 201-ter of the 1996 Guatemalan Criminal Code. An unofficial translation by the authors follows: “Commits the crime of enforced disappearance who obeying to orders, with the authorization or tolerance of the authorities of the State, carries out the deprivation of liberty of one ore more persons in any form, for political reasons, concealing his whereabouts and denying to give information on his fate and whereabouts or to admit his detention. Is equally responsible the public server or employee, whether or not pertaining to the security forces of the State, who orders, authorizes, tolerates or gives his acquiescence to such acts. Amounts to the crime of enforced disappearance any deprivation of liberty of one or more persons, even if lacking any political reason, if the action is committed by members of security forces of the State in service, if they act arbitrarily or ultra vires. Are equally responsible of the crime of enforced disappearance members or persons pertaining to groups or squads organized with terrorist, insurgent, subversive or any other illegal aim, in case they commit moral subjugation or abduction, participating as accomplices or accessories of the mentioned groups or squads. The crime lasts until the victim is freed”.


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Also the publication of the Guatemalan Report was followed by the adoption of an amnesty law. On 28 April 1996, the Guatemalan Constitutive Assembly declared an amnesty for repressive acts perpetrated by State agents till that date (Ley de Reconciliación Nacional, Decree 145–96 of 26 April 1996). However, this legislation expressly excluded cases involving forced disappearances, torture or genocide. 1.8.D

Conclusive Remarks

Truth and Reconciliation Commissions undoubtedly represent unique experiences. A balance of their activities and final reports worldwide would show the existence of both positive and negative or at least questionable aspects. From a merely academic and historical point of view, the final reports of Truth Commissions represent precious sources for reconstructing the facts of often confused situations like internal armed conflicts and civil wars. These reports also answer the global demand to know the truth, even if the general satisfaction with the final findings will substantially change according to the impartiality recognized to the commissions and, often, to the eventual link or support for one party to the conflict or the other. The final recommendations of the Truth and Reconciliation Commissions (suggestions to modify the national legislation, to strengthen the judiciary or to create other mechanisms, etc.) are also of interest, as they are based on the study of concrete cases. The complaints raised by the scarce, when not totally inexistent, follow up and implementation of these recommendations have to be attributed to the lack of good will and faith of national governments rather than to Truth Commissions themselves. However, the crucial point is the balance struck between truth and justice. Truth Commissions often leave the demand for justice unsatisfied, as they may not lead to the condemnation or sanctioning of those responsible for serious human rights violations. In most cases, their final findings are at the disposal of the national judicial authorities that will decide what to do with the data concerning human rights violations and the names of the people found to be responsible for them. The satisfaction of the demand for justice depends on the judges (be they national or international) and on the possibility that they are allowed or willing to effectively perform their tasks. Furthermore, every eventual activity carried out by judicial authorities must not to be frustrated by the adoption of amnesty measures.

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On this issue,239 the 2005 Report of the United Nations Working Group on Enforced or Involuntary Disappearances has highlighted that: The Working Group notes that in some post-conflict situations, mechanisms of truth and reconciliation are being employed as one of the ways of moving the affected societies from war to peace and from conflict to post-conflict government. The Working Group expresses its concern that such circumstances can give rise to the enactment of amnesty laws and the implementation of other measures that lead to the same result: impunity.240

1.9 International Actions for the Prevention and Suppression of Enforced Disappearances The fight against gross human rights violations and, in particular, enforced disappearances has been carried out at both universal and regional levels. Both levels of protection contribute to enlarge the list of the granted rights and to ensure the setting up of mechanisms that can protect them in an effective way. International organizations were involved in the process of drafting instruments specifically addressing the issue of enforced disappearance.241 In 1974 the Interamerican Commission on Human Rights denounced the phenomenon of enforced disappearance in its Report to the General Assembly of the OAS.242 In 1977 the Commission pointed out that the practice was cruel and inhuman and [. . .] not only constitutes an arbitrary deprivation of freedom but also a serious danger to the personal integrity and safety and to even the very life of the victim. It leaves the victim completely defenceless, violating the rights to a fair trial, to protection against arbitrary arrest, and to due process. It is, moreover, a true form of torture for the victim’s family and friends.243

239

240 241

242

243

Of great interest are the Principles to Combat Impunity, supra note 223. In particular, principles 6–13 on “Commissions of Inquiry”. E/CN.4/2006/56, supra note 35, paras. 23 and 603. Moreover, since the Fifties, the International Committee of the Red Cross, within its competence in the field of humanitarian law, has developed a significant action in cases of “missing persons” in situations of international armed conflicts. See the Web page: http://ww.icrc.org. ICommHR, Report on the Human Rights Situation in Chile, OEA/Ser.L/V/II.34 doc.21, 25 October 1974. ICommHR, Report on the Human Rights Situation in Chile, OEA/Ser.L/V/II.40 doc.10, 11 February 1977.


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After having dealt with the specific cases of Cyprus244 and Chile,245 the existence of the practice of enforced disappearance was expressly condemned by the United Nations General Assembly, through Resolution 33/173 on “Disappeared Persons”, adopted on 18 December 1978. Enforced disappearance was considered as a violation of the right to life, the right to personal liberty and integrity, the freedom from torture and other inhuman or degrading treatment, the freedom from arbitrary arrest and detention and the right to a fair trial. During the following years the General Assembly adopted similar resolutions on the issue on an almost yearly basis.246 On 31 October 1979 the General Assembly of the OAS referred to the practice of enforced disappearances in Resolution 443 (IX-0/79), denouncing the extreme seriousness and spread of the situation. This represented a breach in the silence and oblivion which were covering the whole matter during the very years when the phenomenon was reaching its worst intensity within the area. In 1980 the United Nations Commission on Human Rights established the United Nations Working Group on Enforced or Involuntary Disappearances by Resolution No. 20 (XXXVI) of 29 February 1980. It was the first ad hoc mechanism set up by the United Nations with the humanitarian mandate to “assist the relatives of the disappeared and to ascertain the fate and whereabouts of their missing family members”. The purpose of the Working Group is not to determine State responsibility or criminal liability. In 1981 an international non governmental colloquium on the issue of enforced disappearances was held in Paris. It was the first time that the idea of the drafting of an international Convention against enforced disappearances was proposed.247 On 29 March 1982 the Human Rights Committee, the body created to monitor the implementation of the International Covenant on Civil and

244

245

246

247

General Assembly, Resolutions 3450 (XXX), 9 December 1975, and 32/128, 16 December 1977. See also United Nations, Commission on Human Rights Resolution 4 (XXXI), 13 February 1975. General Assembly, Resolution 3448 (XXX), 9 December 1975, which recalls the Progress Report of the ad hoc Working Group on the Situation of Human Rights in Chile, A/10285, 7 October 1975. The Economic and Social Council dealt with the issue by Resolution 1979/38 of 10 May 1979. Of particular interest is the Report submitted to the General Assembly of the United Nations by Mr. Felix Ermacora on the question of the fate of missing and disappeared persons in Chile, A/34/583/Add.1, 21 November 1979. Le refus de l’oubli – La politique de disparition forcée de personnes, Paris, 1981.

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Political Rights, rendered the first view on the subject of enforced disappearance (communication No. R. 7/30, Bleier v. Uruguay).248 Even today, the Committee is the only quasi-judicial international body which has considered specific cases of enforced disappearance occurred in countries not belonging to Latin America or Europe, such as Algeria, Libya, Zaire and Sri Lanka. The Council of Europe dealt with the issue of enforced disappearances in 1984, when the Parliamentary Assembly adopted an ad hoc instrument (Resolution 828/1984 of 26 September 1984). The Interamerican Court of Human Rights, the judicial body established by the 1969 American Convention on Human Rights, was the first regional court to deliver judgments on cases of enforced disappearance. This happened in 1989, when it ruled on three cases regarding the same country (Velásquez Rodríguez v. Honduras, Godínez Cruz v. Honduras, Fairén Garbi and Solís Corrales v. Honduras).249 Since then the Interamerican Court has increasingly dealt with the matter, receiving complaints against various Latin American countries and establishing the most complete and advanced case law on the subject at the international level. At the universal level the normative activity by international organizations about enforced disappearances began with the adoption without vote by the United Nations General Assembly of the Declaration on the Protection of All Persons from Enforced Disappearance (Resolution 47/133 of 18 December 1992). While lacking a mandatory character, this instrument is of particular importance.250 In 1994 the OAS went further by adopting a binding normative instrument: the Interamerican Convention on Forced Disappearance of Persons (Belém do Pará, 9 June 1994), which entered into force on 28 March 1996.251 Another step undertaken to tackle enforced disappearances was in 1996 the establishment, by the Dayton Peace Agreement (Paris, 14 December 1995), of the Human Rights Chamber for Bosnia and Herzegovina, a judicial body which was mandated to investigate, entertain and adjudicate cases of

248 249 250 251

See infra 2.2.A. See infra 2.3.A, 2.3.B and 2.3.C. See infra 3.1.B. The States Parties are Argentina, Bolivia, Costa Rica, Colombia, Ecuador, Guatemala, Mexico, Panama, Paraguay, Peru, Uruguay and Venezuela (last updated on 22 December 2006). See infra 3.2.


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violations of human rights which occurred within Bosnia and Herzegovina after 1995. Over the years this tribunal has collected an interesting case law on the matter.252 On 17 July 1998 the Statute of Rome for the Establishment of the International Criminal Court was adopted. Enforced disappearances were included on the list of crimes against humanity, when they were committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack (Art. 7.2.i). In the same year the European Court of Human Rights, the judicial body established by the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (the so-called European Convention on Human Rights), rendered its first judgment on a case of enforced disappearance (Kurt v. Turkey).253 In 1998 a fundamental normative initiative was undertaken at the United Nations level: the preparation by the Sub-Commission for the Promotion and the Protection of Human Rights of a Draft International Convention on the Protection of All Persons from Forced Disappearance.254 An important step was made in the process which led to the opening for signature, in Paris, on 6 February 2007 of the International Convention for the Protection of All Persons from Enforced Disappearance (hereinafter referred to as “2007 Convention”).255 This instrument constitutes the tool which could fill the gaps that presently hinder the struggle against enforced disappearance and could strengthen the prevention of this heinous practice.256

1.10

The Role Played by Non Governmental Organizations

An overall analysis of the initiatives undertaken both at the national and at the international level in order to prevent and suppress the phenomenon of enforced disappearance shows the fundamental role played by non governmental organizations and, in particular, by associations of relatives of the victims.

252 253 254 255 256

See infra 2.5. See infra 2.4.A. E/CN.4/Sub.2/1998/19, 19 August 1998. See infra 3.4. For a detailed analysis see infra Chapter IV.

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Organizations of relatives of the victims of enforced disappearances are often spontaneously established. Mothers, wives and other relatives visiting police stations, army barracks and government offices to inquire about their missing relatives meet others whose plights are the same. They exchange experiences, discuss their problems and then, sometimes, decide to act together. All over the world organizations of relatives have searched for the disappeared and acted to confront the practice of disappearance. During the process of the adoption of the 1992 Declaration, as well as the 1994 Interamerican Convention and the 2007 Convention, a fundamental role has been played by these organizations, especially by FEDEFAM (Federación Latinoamericana de Asociaciones de Familiares de Detenidos Desaparecidos).257 Created in January 1981, FEDEFAM was the first federation of associations of relatives of the disappeared worldwide. It has been particularly active since then in lobbying and raising the awareness of the international community pleading since 1982 for the adoption of an international convention. Similar associations have followed in Asia (AFAD, Asian Federation Against Involuntary Disappearance) and Africa (RADIF, Réseau Africain contre les Disparitions Forcées). The trend within this kind of non governmental organizations is to create a global movement where they can act all together, joining forces and experiences.258 Other organizations too are active on human rights matters both at the local and at the national level. Such organizations vary in their mandates and methods of action. Some have their roots in established religious associations; others are affiliated with trade unions, political parties or professional associations; others are independent. Some are primarily legally oriented, working through the judicial system; others rely mainly on awareness raising and other forms of action.259

257

258

259

FEDEFAM, Memorial Taller – Contra la impunidad y por la aprobación de la convención de protección a todas las personas contra las desapariciones forzadas – No más indiferencia, ¡No más!, Santa Fe de Bogotá, 2004. A non governmental organization particularly active in this sense is the Dutch “Linking Solidarity – HOM”, which is providing both consultancy and funds in order to create a Global Federation of the Relatives of Disappeared Persons. See the Web page: http://www.hom.nl. To date, no global international campaign against enforced disappearances as such has been carried out by non governmental organizations as has been done against the death penalty or violence against women. Such a global campaign would represent a signal to governments and to the civil society worldwide, overcoming the stereotype according


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The contribution of non governmental organizations to the international protection of human rights is increasingly being recognized in the United Nations system. Besides the already mentioned associations of the relatives of the disappeared, Amnesty International, Human Rights Watch, the International Commission of Jurists and the International Federation of Human Rights have been actively involved in the drafting of the 2007 Convention260 and in supporting its adoption at the General Assembly’s 2006 session.261 They are expected to do the same to facilitate a timely entry into force and a broad acceptance of the Convention. The main activities carried out by non governmental organizations to fight enforced disappearances may be summarised as follows: – – – – – –

260

261

making inquiries and pressing the authorities to disclose information about the whereabouts and fate of the disappeared; sending fact-finding missions to make on-the-spot investigations and meet government officials; pursuing individual cases in the courts through means such as habeas corpus petitions, criminal complaints and civil suits; advocating individual cases of enforced disappearances before international tribunals; publishing reports of disappearances with recommendations on the measures needed to end them; exercising continuing pressure over the domestic authorities in order to change domestic criminal law, codifying an autonomous offence of enforced disappearance and providing the required regime of sanctions;

to which enforced disappearances are a phenomenon of the past, only related to Latin America. However, a common global campaign, named “For the right not to disappear, Convention now!”, was set up in June 2006 to obtain the adoption of the text of the 2007 Convention by the new United Nations Council of Human Rights. Several non governmental organizations agreed to endorse the struggle to obtain a Convention only in 2004, while during the previous years they tried to convince relatives of the victims that they could go along with the already existing human rights instruments. The most active human rights non governmental organizations on the issue are the International Commission of Jurists, Human Rights Watch and the International Federation on Human Rights (FIDH). See, inter alia, http://www.icj.org/news.php3?id_ article=3873&lang=en and http://www.icj.org/IMG/pdf/Obs.Conv.Disp_engl.pdf.

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–

– – – –

monitoring the respect of international conventions, covenants and declarations subscribed or ratified by States regarding the issue of enforced disappearance; lobbying for the adoption of required new legal instruments and the prompt ratification by States of existing treaties; providing material and moral support to the relatives of the victims and to victims of enforced disappearance who reappear; investigating individual cases and documenting the extent of the practice; informing the public of their rights under national law and international human rights standards.262

In its 2005 Report the United Nations Working Group on Enforced or Involuntary Disappearances has noted with deep concern that: Unfortunately, in some regions non-governmental organizations (NGOs) are not numerous and organized enough to be able to work effectively on disappearances. Nevertheless the Working Group continues to receive positive information on the development of a network of associations of families of victims and NGOs that may be able to deal with this issue in the future. The Working Group is concerned that, in a number of States, legal restrictions are placed upon NGOs working on cases of disappearance. NGO workers and witnesses to disappearances are also subject to threats and harassment. The Working Group strongly urges States to allow NGOs to undertake their work freely and without impediment; to allow families of victims of disappearances to organize freely without bureaucratic restriction or legislative obstacles; and to protect witnesses.263

To strengthen the fundamental role played by non governmental organizations and associations of relatives of disappeared persons in the struggle against this crime, it is necessary that States provide them with adequate protection and guarantees.264

262

263 264

See, inter alia, Amnesty International, Disappearances and Political Killings – Human Rights Crisis of the 1990s, Amsterdam, 1994. E/CN.4/2006/56, supra note 35, paras. 7 and 597. The 2007 Convention sets forth an obligation for the States Parties to “guarantee the right to form and participate freely in organizations and associations concerned with contributing to the establishment of the circumstances of enforced disappearances and with assistance to victims of enforced disappearance” (Art. 24.7). See infra 4.10.

Chapter II Overview of International Case Law on Enforced Disappearance 2.1

The Importance of International Case Law

Before the adoption of specific instruments to deal with the issue of enforced disappearance (the 1992 United Nations Declaration and the 1994 Interamerican Convention), the judgments and views of international courts and committees applying general treaties on human rights have been the only means for the establishment of normative principles relating to the subject. For instance, it is at the judicial level that principles such as the reversal of the burden of proof, the continuing nature of the offence and the lack of competence by military tribunals and special courts to judge on cases of enforced disappearance have been elaborated. The same can be said as regards the prohibition to apply amnesty laws and similar measures to persons responsible for disappearance, as well as the concept of the right to truth and the need for articulated forms of reparation to the victims. Despite some drawbacks, international jurisprudence has made a considerable contribution towards the progressive development of international rules to fight enforced disappearance. A number of selected cases are examined, giving more emphasis to the case law of the Interamerican Court of Human Rights due to its major contribution on the issue. The analysis of international jurisprudence shows both the development of specific legal principles and the human tragedy of the victims.

2.2

The Human Rights Committee

The Human Rights Committee (hereinafter, “the Committee”), established under the 1966 International Covenant on Civil and Political Rights (hereinafter, “the Covenant”) expressed its views under Article 5 of the Optional

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Scovazzi & Citroni – Chapter II

Protocol on a number of cases relating to enforced disappearances which mostly occurred in Latin American countries.1 The Committee provided some important contributions to the definition of the offence of enforced disappearance and the development of legal tools for fighting it, such as the reversal of the burden of proof. However, the action by the Committee seems to be undermined by its recent refusal to acknowledge the continuous character of the offence (case Yurich v. Chile).2 Generally speaking, the backlog which presently affects the activity of the Committee may become a factor discouraging communications presented by individuals who claim the violation of the rights listed in the Covenant.3 2.2.A

Bleier v. Uruguay

On 29 March 1982 the Committee released for the first time views on a case of enforced disappearance. The facts occurred in Uruguay, one of the several Latin American countries where, during that period, thousands of people were disappearing and the domestic courts were unable or unwilling to take decisions and impose sanctions.4 According to the authors of the communication, Irene and Rosa Bleier, the daughter and the wife of the alleged victim, at the end of October 1975 Eduardo Bleier was arrested without warrant in Montevideo. While the Uruguayan authorities did not officially acknowledge his arrest, he was held incommunicado at an unknown place. His detention was however indirectly confirmed because his name was on a list of prisoners read out once a week at an army unit in Montevideo, where his family delivered clothing for him and received in return what was said to be his dirty clothing. His name appeared on that list for several months. On 11 August 1976 a communication of the armed forces press office was printed in the Montevideo 1

2 3

4

In the general comment on the right to life adopted in July 1982 (General Comment 6/16, 27 July 1982), the Committee stated that “States Parties should take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life”. See infra 2.2.O. For the current problems of functioning of the HRC and the the creation of a new monitoring body for the 2007 Convention, see infra 4.15. HRC, Case Bleier v. Uruguay, Communication No. R.7/30, 29 March 1982.

International Case Law on Enforced Disappearance

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newspapers, requesting the public to co-operate in the capture of 14 people (among whom was also listed Mr. Bleier) “known to be associated with the banned Communist Party, who had not presented themselves when summoned before the military courts”. However, a number of co-detainees gave personal accounts of the cruel torture to which Mr. Bleier had been subjected. According to the authors of the communication, it was not possible to know whether their relative was dead or alive. They also maintained that, in practice, legal remedies did not exist at that time in Uruguay and that the authorities never answered the letters asking for clarification about the fate and whereabouts of Mr. Bleier. The authors of the communication alleged the violation of Articles 2 (right to effective remedies), 3 (right to non discrimination in the enjoyment of civil and political rights), 6 (right to life), 7 (prohibition of torture), 9 (right to liberty and security), 10 (rights of persons deprived of liberty), 12.2 (freedom of movement), 14 (right to a fair trial), 15 (no punishment without law), 17 (right to respect for private and family life), 18 (freedom of thought, conscience and religion), 19 (freedom of expression), 25 (political rights) and 26 (prohibition of discrimination) of the Covenant. Uruguay, asked by the Committee to submit information and explanations about the case, answered that Mr. Bleier was suspected of being connected with the subversive activities of the banned Communist Party and for this reason he had possibly gone into hiding. The Committee requested Uruguay to proceed to an impartial and thorough inquiry, adding that, having regard to the testimonies brought by the authors of the communication, the presence of the name of the victim on a list of prisoners read out once a week at an army unit in Montevideo had not been explained by the State Party as required. The serious allegations brought against Uruguay had not been properly addressed and, on the contrary, were corroborated by unrefuted information. The conclusion to be inferred was that Mr. Bleier was either still detained incommunicado or had died while in custody. Uruguay replied with complaints about the Committee’s ignorance of the legal rules relating to the presumption of guilt and about the “lack of ethics” in carrying out the tasks entrusted to it. Opposing these assumptions, the Committee stated that: With regard to the burden of proof, this cannot rest alone on the author of the communication, especially considering that the author and the State Party do not always have equal access to the evidence and that frequently the State Party alone has access to relevant information. It is implicit in Article 4.2 of the Optional Protocol that the State Party has the duty to investigate

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in good faith all allegations of violation of the Covenant made against it and its authorities, especially when such allegations are corroborated by evidence submitted by the author of the communication, and to furnish to the Committee the information available to it. In cases where the author has submitted to the Committee allegations supported by substantial witness testimony, as in this case, and where further clarification of the case depends on information exclusively in the hands of the State Party, the Committee may consider such allegations as substantiated in the absence of satisfactory evidence and explanations to the contrary submitted by the State Party.5

By this determination, the Committee established the principle of the reversal of the burden of proof in circumstances which frequently occur in cases of enforced disappearances. Analyzing the information and documents at its disposal, the Committee found that there had been breaches of Articles 6, 7 and 10.1 of the Covenant. It also urged Uruguay to take effective steps to establish what had happened to Mr. Bleier since October 1975, bring to justice any person found to be responsible for his death, disappearance or illtreatment, pay compensation to him or his family and ensure that similar violations will not occur again in the future. 2.2.B

Quinteros v. Uruguay

In 1983 the Committee released views about a second case of enforced disappearance relating to Uruguay.6 Mrs. Quinteros submitted the communication on behalf of her daughter, Elena Quinteros Almeida, and on her own behalf: My daughter (born on 9 September 1945) was arrested at her home in the city of Montevideo on 24 June 1976. Four days later, while she was being held completely incommunicado, she was taken by military personnel to a particular spot in the city near the Embassy of Venezuela. My daughter would appear to have told her captors that she had a rendezvous at that place with another person whom they wished to arrest. Once she was in front of a house adjoining the Embassy of Venezuela, my daughter succeeded in getting away from the persons accompanying her, jumped over a wall and landed inside the Embassy grounds. At the same time, she shouted out her name so as to alert

5

6

Ibid., para. 12. The same principle has been followed by the IACHR since the judgment on the case Velásquez Rodríguez v. Honduras (Merits; infra 2.3.A) and by the ECHR since the judgment on the case Timurtas v. Turkey (infra, 2.4.C). HRC, Case Quinteros v. Uruguay, Communication No. 107/1981, 21 July 1983.


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passers-by to what was happening in case she was recaptured. The military personnel accompanying her then entered the diplomatic mission and, striking the Secretary of the Embassy and other members of its staff, dragged my daughter off the premises.7

The author of the communication claimed that since that day (28 June 1976) she had never been able to obtain any information on the whereabouts of her daughter from the authorities. To support the allegations, she enclosed an extract from a booklet entitled Mujeres y niños uruguayos desaparecidos (“Missing Uruguayan Women and Children”) concerning the case of her daughter. This publication recalled that on 2 March 1979 the representative of Uruguay to the United Nations Commission on Human Rights in Geneva, at that time Director of Foreign Policy of the Ministry of Foreign Affairs, had told Mrs. Quinteros that her daughter was alive, had been taken from the Venezuelan Embassy by members of the Uruguayan police and army and was being detained, while efforts were being made to clarify responsibilities. A former detainee stated he had met the victim during her detention. A second witness, who had taken refuge at the embassy of Venezuela in Montevideo, had seen the victim being abducted by policemen from that building. Mrs. Quinteros alleged that Articles 7 (prohibition of torture), 9 (right to liberty and security), 10 (rights of persons deprived of liberty), 12 (freedom of movement), 14 (right to a fair trial), 17 (right to respect for private and family life) and 19 (freedom of expression) of the Covenant had been violated. She added that she was herself a victim of a violation of Articles 7 and 17 of the Covenant, because of what she considered to be a form of psychological torture and an interference in her private and family life. Requested for information and observations relevant for the question of admissibility of the communication and the whereabouts of the alleged victim, Uruguay did not reply until after the given deadline, when it submitted a note which read as follows: The Uruguayan government wishes to inform that the person in question (Elena Quinteros) has been sought throughout Uruguay since May 1975. The assertions contained in this communication are therefore rejected as unfounded, since the government had no part in the episode described.8

7

8

Ibid., para. 1.2. Due to this egregious violation of the rules of international law on the immunity of the premises of a foreign embassy, Venezuela suspended its diplomatic relations with Uruguay. Ibid., para. 6.

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Mrs. Quinteros complained that such an answer by the government did not address any specific aspect of the communication. The Committee, lacking any relevant defence or evidence by Uruguay, took into consideration the information provided by the author of the communication and found breaches of Articles 7, 9 and 10.1 of the Covenant. With regard to the violations alleged by the author on her own behalf, the Committee concluded that: [It] understands the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. The author has the right to know what has happened to her daughter. In this respect, she too is a victim of the violations of the Covenant suffered by her daughter, in particular of Article 7.9

This conclusion of the Committee represents the first acknowledgment of the complex character of an offence which in the majority of cases implies the existence of other victims besides the person directly involved, who personally suffers the arrest, both physical and psychological torture, the deprivation of liberty and, in many cases, the loss of his life. But the same offence of enforced disappearance affects, albeit in a different way, also the relatives of the material victim who suffer a form of inhuman treatment.10 When a relative disappears, “those who remain” are affected by a psychological situation of uncertainty. The actual absence is not comparable to the loss caused by a death, as the missing person could equally be dead or alive. In fact, there is an ongoing affliction, caused by the “ghost” of the presence of a loved person, which may last for decades after the disappearance. In the Quinteros case the Committee made the first recognition of the right of the relatives of the victim to know the truth.11 While it was not explicitly stated in any part of the views, another aspect which appears to be implied in the words of the author of the communication is the continuous (or ongoing) nature of the offence.

9 10

11

Ibid., para. 14. The HRC reached this important and innovating conclusion in 1983. It will be followed by the IACHR in 1998 and by the ECHR in 2000. Indeed there is another level of violation which affects society as a whole. A widespread practice of enforced disappearances creates a climate of constant terror and fear, as well as a “conspiracy of silence” for fear of reprisals. What is lost is the collective knowledge of the truth. See IACHR, Case Bámaca Velásquez v. Guatemala (Merits; Reparations; infra 2.3.N). On the right to truth, see infra 4.11.


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I continue to suffer day and night because of the lack of information on my dear daughter, and I therefore believe that, from the moment when my daughter was arrested, I was, and I continue to be, the victim of a violation.12

If the offence is deemed to be continuous, it lasts until the fate and whereabouts of a victim have been established beyond any reasonable doubt or his remains are found, irrespective of the day when he disappeared or the day on which the State involved has recognised the competence of an international body to deal with the case.13 Lastly, in the Quinteros case, the Committee reiterated the important principle of the reversal of the burden of proof as to the evaluation of evidence in cases of enforced disappearances. To find a violation of rights recognized in the Covenant, the Committee relied on the information presented by the author of the communication “in the absence of any convincing defence or evidence by the government”. This standard is indispensable in cases of enforced disappearances and complies with basic needs of justice. If the victims and the relatives were subject to the usual burden of proof, they would be placed in the condition of being denied justice.14 2.2.C Arévalo v. Colombia The views on the third communication about enforced disappearances (case Arévalo v. Colombia)15 were rendered by the Committee in 1989. Elcida Arévalo Pérez acted on behalf of her sons, Alfredo Rafael and Samuel Humberto Arévalo, who had disappeared in Colombia on 8 March 1982. She stated that Alfredo Rafael had left the family home in Bogotá with the intention of going to the university and that Samuel Humberto had left the home later on the same day for the purpose of attending an interview for a job. Neither of them returned and their whereabouts remained unknown ever since. She also stated that on the same day she was told by neighbours that

12 13

14

15

HRC, Case Quinteros, supra note 6, para. 7.3. This principle will be affirmed in the 1992 Declaration (Art. 17.1) and in the 1994 Inter-american Convention (Art. 2). It will also be recognized by the IACHR, Case Blake v. Guatemala (Merits; infra 2.3.I). This rule will then be recalled both by the IACHR, Case Velásquez Rodríguez v. Honduras (Merits; infra, 2.3.A), Case Godínez Cruz v. Honduras (Merits; infra, 2.3.B), Case Fairén Garbi and Solís Corrales v. Honduras (Merits; infra, 2.3.C), and the ECHR, Case Timurtas (infra, 2.4.C). HRC, Case Arévalo v. Colombia, Communication No. 181/1084, 3 November 1989.

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their home had been watched by armed individuals that had identified themselves as agents of the “F2” (a section of the Colombian police forces). Between June and September 1982 the case was reported to the assistant prosecutor of the police, to the army, to the office of the Attorney General and to the Administrative Department of Security (DAS). Investigations were carried out, but without significant results. The author mentioned as well several letters she wrote to the President of the Republic. She could never obtain any official information about the fate of her sons, apart from some indications from the chief of the DAS that they had been arrested by agents of the F2 and would soon reappear.16 Mrs. Arévalo claimed as violated Articles 2.2 (right to effective remedies), 6 (right to life), 7 (prohibition of torture), 9 (right to liberty and security) and 10 (rights of persons deprived of liberty) of the Covenant. Asked for clarifications and information, Colombia presented a number of files and evidence of domestic proceedings (civil, criminal and administrative) already concluded or still pending. While appreciating this attitude, the Committee stressed that it was not competent to make any finding on the guilt or innocence of the Colombian officials who were under investigation for possible involvement in the disappearance of the Arévalo brothers. The Committee noted that the parents of the brothers had received indications that their sons had been arrested by agents of the “F2”. It further pointed out that in none of the investigations ordered by the government had it been suggested that the disappearance of the victims was caused by persons other than government officials. For these reasons, the Committee found that Articles 6 and 9 of the Covenant had been violated by Colombia. It also asked to be kept informed on further developments in the investigation of the disappearance of the Arévalo brothers.17

16

17

“Confíen en dios que pronto aparecerán y estén tranquilos”. “Trust in God that they will appear soon and stay calm”. A member of the HRC, Mr. Nisuke Ando, attached a dissenting opinion. He found the declaration of responsibility of the State Party too sweeping. Despite the deplorable situation of enforced disappearances in Colombia, he assessed the efforts made by the government and, accordingly, he was not persuaded that the findings of the Committee were justified. In his view, it was not proper at that stage for the Committee to draw the conclusions it did, considering the possibility that it might be established that private persons were involved in the disappearance.


2.2.D

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El-Megreisi v. Libyan Arab Jamahiriya

In 1994 the Committee for the first time rendered views on a case of disappearance not concerning a Latin American country (El-Megreisi v. Libyan Arab Jamahirya).18 Youssef El-Megreisi, a stateless individual of Libyan origin resident in the United Kingdom, submitted the communication on behalf of his brother, Mohammed Bashir El-Megreisi. He stated that in January 1989 his family home in Banghazi was searched. The intruders allegedly were members of the Mukhabarat, the Libyan security police. His brother was asked to dress and accompany them, purportedly to assist in some unspecified security matters. He never returned. No specific charges were brought against him, nor was any trial ever held. The family could not trace him for approximately three years and feared that he had been tortured or killed, which was said to be the usual fate of political detainees in Libya. In April 1992 the El-Megreisi family learnt that he was still alive, since he was allowed a visit by his wife. According to her, the Libyan authorities had told her husband that no charges existed against him and that they had no reason to keep him in detention other than for routine procedures. As to the requirement of exhaustion of domestic remedies, it appeared from the submissions of the author that the local remedies were deemed to be both unavailable and ineffective. Although the author did not invoke specific provisions of the Covenant, the Committee determined from the submission that he considered his brother to be the victim of a violation of Articles 7 (prohibition of torture), 9 (right to liberty and security) and 10 (rights of persons deprived of liberty).19 Libya, asked to provide information with regard to the substance of Mr. El-Megreisi’s allegations, did not give any answer. The Committee found violations of Articles 7, 9 and 10.1. These findings were based on the consideration that: Being subjected to prolonged incommunicado detention in an unknown location constitutes torture and cruel and inhuman treatment.20

18

19

20

HRC, Case El-Megreisi v. Libyan Arab Jamahiriya, Communication No. 440/1990, 23 March 1994. Determining the alleged violations by itself, the HRC exercised a competence deriving from the principle of “iura novit curia”. Ibid., para. 5.4.

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For the first time, incommunicado detention was considered a form of torture by an international body.21 2.2.E

Mojica v. Dominican Republic

In 1994 the Committee delivered also views on a case relating to the Dominican Republic (Mojica v. Dominican Republic).22 Babarín Mojica submitted the communication on behalf of his son, Rafael Mojica. The victim was a dock worker in the port of Santo Domingo, who was last seen by his family in the evening of 5 May 1990. Between 8 p.m. and 1 a.m. he was seen at the restaurant El Aplauso in the neighbourhood of the office of the Arrimo Portuario union, to which he was associated. Witnesses affirmed that he later boarded a taxi in which other unidentified men were seated. Mr. Mojica contended that during the weeks prior to the disappearance his son had received death threats from military officers of the Dirección de Bienes Nacionales because of his communist inclinations. The family and the friends of the victim requested the opening of investigations and when, one month after his disappearance, two decapitated and mutilated bodies were found, they filed a request to carry out an autopsy. The latter was performed but could not establish the identity of the victims. The investigations did not lead to any concrete result. The author, while presenting his communication to the Committee, contended that under the law of the Dominican Republic no specific remedies were available in cases of enforced or involuntary disappearance of persons. He claimed violations by the State Party of Articles 6 (right to life), 9.1 (right to liberty and security) and 10 (rights of persons deprived of liberty) of the Covenant. Asked to submit its opinions and relevant information, the Dominican Republic did not co-operate. In the absence of any response by the government, the Committee relied on the allegations of the author and concluded that the State Party had failed to ensure the right to liberty and security (Art. 9) of Mr. Mojica, nor had it effectively protected his right to life (Art. 6), especially considering that this was a case where the life of the victim had

21

22

On this issue see HRC, General Comment No. 20 on Article 7 (Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.1, 1994, p. 30). HRC, Case Mojica v. Dominican Republic, Communication No. 449/1991, 15 July 1994.


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previously been threatened in public by military officers. The Committee stated that: The circumstances surrounding Rafael Mojica’s disappearance, including the threats made against him, give rise to a strong inference that he was tortured or subjected to cruel and inhuman treatment. Nothing has been submitted to the Committee by the State Party to dispel or counter this interference. Aware of the nature of enforced or involuntary disappearances in many countries, the Committee feels confident to conclude that the disappearance of persons is inseparably linked to treatment that amounts to a violation of Article 7.23

This decision of the Committee established a precedent as to the presumption of the existence of torture and inhuman and degrading treatment in cases of enforced disappearances where it is reasonable to reach such a conclusion on the basis of the practice existing in a specific country. The Dominican Republic was urged to investigate thoroughly the disappearance of Rafael Mojica, bring to justice those responsible for his disappearance, pay appropriate compensation to his family and inform the Committee, within 90 days, about the measures taken in response to its views. 2.2.F Tshishimbi v. Zaire In 1995 the Committee delivered its views on another non Latin American case (Tshishimbi v. Zaire).24 Agnès N’Goya acted on behalf of her husband, Katombe Tshishimbi, a career military officer and supporter of a party of political opposition to president Mobutu Sese Seko. Mr. Tshishimbi was abducted during the night of 28 March 1993. Belgian press reports of 6 April 1993 pointed out that he had been arrested. However, the exact circumstances of his abduction, which occurred after he had left the residence of the Prime Minister for his home, remained unknown. It was believed, according to subsequent Belgian newspaper reports that “he is/was detained at the Head Quarters of the National Intelligence Service (SNIP), where ill treatment is said to be common”.25 The author claimed violations of Articles 2.3 (right to effective remedies), 3 (right to non discrimination in the enjoyment of civil and political rights), 5 (non derogation), 7 (prohibition of torture), 9 (right to liberty and security),

23 24 25

Ibid., para. 5.7. HRC, Case Tshishimbi v. Zaire, Communication No. 542/1993, 16 March 1995. Ibid., para. 2.4.

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12.1 (freedom of movement), 17 (right to respect for private and family life), 18 (freedom of thought), 19 (freedom of expression), 20.2 (prohibition of advocacy of national, racial or religious hatred) and 25 (political rights). The Committee repeatedly requested Zaire to clarify the fate and whereabouts of the victim and to avoid any action which might cause irreparable harm to Mr. Tshishimbi. As the State Party never answered nor cooperated, the Committee expressed “serious concern” about this attitude. It considered that some of the allegations presented were formulated in a general and unsubstantiated manner. In particular: Nothing in the file indicated that Mr. Tshishimbi had been subjected to arbitrary interference with his privacy (Art. 17), denied his freedom of conscience and religion (Art. 18), his right to freedom of expression (Art. 19) or his right to political participation (Art. 25).26

The Committee accordingly declared the violation of the Covenant with regard to Articles 2.3, 7 (only for Mr. Tshishimbi and not for his relatives) and 9. 2.2.G

Mónaco v. Argentina

The first views on a case of enforced disappearance of children were delivered by the Committee in 1995 (Mónaco v. Argentina).27 Mrs. Darwinia Rosa Mónaco de Gallicchio presented the communication on her own behalf and on behalf of her granddaughter, Ximena Vicario, born in 1976. Mrs. Mónaco claimed that they both were victims of violations by Argentina of Articles 2.3 (right to effective remedies), 7 (prohibition of torture), 8 (prohibition

26

27

Ibid., para. 4.5. This conclusion is not fully persuasive. Considering the context existing at the time of the abduction in Zaire, where the opponents of the regime of president Mobutu were openly harassed, and considering that the victim was publicly recognized as a political opponent, interferences and violations of his political rights, in the absence of evidence to the contrary given by the State, could have been presumed. The HRC also observed that the author’s allegations under Articles 3, 5, 12.1, 17, 18, 19, 20.2, and 25 of the Covenant were general and unsubstantiated. HRC, Case Mónaco v. Argentina, Communication No. 400/1990, 3 April 1995. Another case of enforced disappearance of a child ruled by the HRC is Celis Laureano v. Peru (infra 2.2.I). A few years later, when faced with an identical matter, the HRC would not even recognize the violation of Article 24.1 (rights of the child) of the Covenant, thus taking a step backward in the development of the rights of the child: see Case Coronel and others v. Colombia (infra 2.2.M).


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of slavery and forced labour), 9 (right to liberty and security), 14 (right to a fair trial), 16 (right to recognition as a person before the law), 17 (right to respect for private and family life), 23 (rights of the family), 24 (rights of the child) and 26 (prohibition of discrimination) of the Covenant. On 5 February 1977, the mother of Ximena was taken with the then nine-month old child to the Head Quarters of the Federal Police (Departamento Central de la Policía Federal ) in Buenos Aires. Her partner was apprehended in the city of Rosario on the following day. Both the parents of Ximena subsequently disappeared. Although after December 1983 the National Commission on Disappeared Persons investigated the case, their whereabouts could never be established. Investigations initiated by Mrs. Mónaco herself finally led, in 1984, to locating Ximena, who was then residing in the home of a nurse, S. S. The latter claimed to have been taking care of the child after her birth. Genetic blood tests revealed that the child was, with a probability of 99.82 per cent, the granddaughter of the author of the communication. On 2 January 1989, Mrs. Mónaco was granted “provisional” guardianship of the child. However, S. S. applied for visiting rights, which were granted to her by order of the Supreme Court on 5 September 1989. The Court held that Mrs. Mónaco had no standing in the proceedings about the guardianship of the child, since, under applicable Argentine legislation, “only the parents and the legal guardian have standing and may directly participate in the proceedings”. Mrs. Mónaco claimed, inter alia, the violation of the rights of her granddaughter, who had been subject to psychological torture every time she had been visited by S. S., in violation of Article 7 of the Covenant. She also claimed as violated the rights to recognition as a person before the law, the right to privacy and the right to integrity of the family of her granddaughter. As the abduction of Ximena had occurred prior to the entry into force of the Covenant and the Optional Protocol for Argentina (8 November 1986), the Committee found itself not in a position, ratione temporis, to take any view on violations which had allegedly occurred prior to 1986. It made the following remark: The Committee could, however, make a finding of a violation of the Covenant if the continuing effects of those violations were found themselves to constitute violations of the Covenant.28 [. . .]

28

HRC, Case Mónaco, supra note 27, para. 10.4.

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With reference to the violations of the Covenant which occurred prior to 8 November 1986, the Committee encourages the State Party to persevere in its efforts to investigate the disappearance of children, determine their true identity, issue to them identity papers and passports under their real names, and grant appropriate redress to them and their families in an expeditious manner.29

The Committee did not find any violation of Article 16 (right to recognition as a person before the law) as the courts of the State Party had endeavoured to establish the identity of the child and issued her papers accordingly. However, the abduction of Ximena, the falsification of her birth certificate and her adoption by S. S. amounted, in the view of the Committee, to serious violations of Articles 17, 23.1 and 24.1 and 2. 2.2.H

Bautista v. Colombia

The subsequent communication received by the Committee regarded the case Bautista v. Colombia. The views were rendered in 1995.30 The author of the communication was Federico Andreu, a Colombian lawyer residing abroad. He was instructed to act by the relatives of Nydia Erika Bautista de Arellana, a Colombian citizen who disappeared on 30 August 1987 and whose body was subsequently recovered. On 25 August 1986 Ms. Bautista, a member of the 19 April Movement (M-19), was detained in Cali, Colombia, by a military unit. She was kept incommunicado for three weeks and allegedly tortured during this period. Upon signing a statement that she had been well treated during detention, she was released. On 30 August 1987 Ms. Bautista was abducted from the family home in Bogotá. According to eyewitnesses she was pulled into a Suzuki jeep by eight armed men dressed in civilian clothes. In September 1987 the body of a woman was found in the municipality of Guayabetal. The death certificate indicated that it pertained to a 35-yearold woman “wearing a white dress with blue spots and a white hand bag, blindfolded, the hands tied together, face mutilated”. According to the autopsy, the deceased had been shot in the head. No further efforts were then made to identify the body. Early in 1990 the family of the victim learnt about the unidentified woman buried in Guayabetal, whose characteristics corresponded to those of Nydia. After pressure from the family the Special 29 30

Ibid., para. 12. HRC, Case Bautista v. Colombia, Communication No. 563/1993, 27 October 1995.


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Investigations Division of the Office of the Attorney General ordered the exhumation of the body. The sister of the victim identified the pieces of cloth, bag and earring. On 11 September 1990, a detailed report of forensic experts confirmed that the remains were those of Ms. Bautista. On 22 February 1991, a sergeant of the 20th Brigade of the Intelligence and Counterintelligence Unit testified before the chief of the Special Investigations Divisions that Nydia Bautista had been abducted by members of his brigade, acting either with the consent or at the orders of the highest commanding officer, Col. Alvaro Velandia Hurtado. He further revealed that Sgt. Ortega Araque had driven the jeep in which Ms. Nydia Bautista had been abducted. He added that she had been held for two days in a farm before being taken to Quebradablanca, where she had finally been killed. Several attempts to obtain justice were made by the relatives of the victim, at the civil, administrative and criminal level. At no time had the competent Colombian authorities adequately investigated the events. The author of the communication claimed violations of Articles 2.3 (right to effective remedies), 6 (right to life), 7 (prohibition of torture), and 14 (right to a fair trial) of the Covenant. To respond to the allegations, Colombia stated that its authorities had been doing and were doing their utmost to bring to justice those held responsible for the disappearance and death of Ms. Bautista. It was added that the domestic remedies available to the case had not been exhausted by the relatives of the victim. The Committee noted that over seven years after the disappearance of the victim no criminal proceedings had been instituted, nor had those responsible for the disappearance of Ms. Bautista been identified, arrested or tried. The Committee deemed this delay in the judicial proceedings “unreasonable” within the meaning of Article 5.2.2 of the Optional Protocol.31 Moreover, during the whole duration of the proceedings both at national and international level, the family of the victim and people who tried to assist and help them continued to suffer acts of intimidation and harassment. In this context the first lawyer of the family, Dr. Alirio de Jesus Pedraza Becena, disappeared in Bogotá on 4 July 1990.32

31

32

Article 5.2: “The Committee shall not consider any communication from an individual unless it has ascertained that: (. . .) 2. The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged”. On this abduction and disappearance, the ICommHR concluded that Colombia had

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The Committee rejected the view of the State Party according to which disciplinary sanctions taken against Col. Velandia Hurtado and Sgt. Ortega Araque constituted an effective remedy for the family of the victim. It found that, in the event of particularly serious violations of human rights, notably in the event of an alleged violation of the right to life, disciplinary and administrative remedies do not amount to adequate and effective remedies within the meaning of Article 2.3 of the Covenant. The Committee concluded that Articles 6, 7 and 9.1 of the Covenant had been violated. 2.2.I Celis Laureano v. Peru The views of the Committee on the case Celis Laureano v. Peru were rendered in 1996.33 Basilio Laureano, a Peruvian citizen, submitted the communication on behalf of his granddaughter, Ana Rosario Celis Laureano, whose whereabouts were unknown. She was 16 years old at the time of disappearance.34 Mr. Laureano claimed that she was a victim of violations by Peru of Articles 2.1–3 (right to effective remedies), 6.1 (right to life), 7 (prohibition of torture), 9 (right to liberty and security), 10.1 (rights of persons deprived of liberty) and 24.1 (rights of the child) of the Covenant. The author of the communication, who was a farmer, lived with his family in the district of Ambar, Peru. In March 1992 his granddaughter was abducted by unknown armed men, presumably guerrillas of the Shining Path movement (Sendero Luminoso). She returned six days later and told her grandfather that the guerrillas had threatened to kill her if she refused to join them and that she was forced to carry their baggage and to cook for them. However, after a few days she had been able to escape. In May 1992 she was once again forced by the guerrillas to accompany them. After a shoot-out between a unit of the Peruvian army and the guerrillas, she again escaped. Nobody denounced these events to the authorities out of fear of reprisals from the guerrillas and because, at that time, the regular army had not yet been stationed in the Ambar District. On 23 June 1992 Ms. Laureano was detained in Ambar by men pertaining to the army on the ground of suspected collaboration with the Shining

33 34

failed to comply with its obligations to respect and guarantee Articles 4, 5, 7 and 25, in connection with Article 1.1, of the American Convention (ICommHR, Case No. 10.581, de Jesus Pedraza Becerra v. Colombia, 25 September 1992). HRC, Celis Laureano v. Peru, Communication No. 540/1993, 25 March 1996. For an analysis of the subject of enforced disappearances and children see supra 1.4 and infra 4.14. See also HRC, Case Coronel and others v. Colombia (infra, 2.2.M).


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Path movement. For the first eight days her mother was allowed to visit her. Subsequently the mother was told that she had been transferred. It has been impossible to obtain any further information about the girl since then. In response to the communication Peru alleged that the victim may have been abducted by the guerrillas. Furthermore, the State Party questioned the competence of the Committee to deal with the case, because the same question was also pending before the United Nations Working Group on Enforced or Involuntary Disappearances. Nonetheless, the Committee admitted the case, considering that: Extra-conventional procedures or mechanisms established by the United Nations Commission on Human Rights or the Economic and Social Council, and whose mandates are to examine and publicly report on human rights situations in specific territories or on major phenomena of human rights violations worldwide, do not, as the State Party should be aware, constitute a procedure of international investigation or settlement within the meaning of Article 5.2 (a) of the Optional Protocol.35

Considering the alleged violation of the right to life, the Committee noted that: In the instant case, the State Party concedes that Ms. Laureano remains unaccounted for since the night of 13 August 1992 and does not deny that military or special police units in Huaura or Huacho may have been responsible for her disappearance, a conclusion reached, inter alia, by a judge of the Civil Court in Huacho. No material evidence has been advanced to support the contention of the State Party that a unit of Shining Path may have been responsible for her abduction. In the circumstances of the case, the Committee finds that the right to life of Ana Laureano enshrined in Article 6, read together with Article 2, paragraph 1, has not been effectively protected by the State Party.36

With regard to the claim under Article 7, the Committee recalled that: Ms. Laureano disappeared and had no contact with her family or, on the basis of the information available to the Committee, with the outside world. In the circumstances, the Committee concludes that the abduction and disappearance of the victim and prevention of contact with her family and with the outside world constitute cruel and inhuman treatment, in violation of Article 7, together with Article 2.1 of the Covenant.37

35 36 37

HRC, Case Celis Laureano, supra note 33, para. 7.1. Ibid., para. 8.4. Ibid., para. 8.5.

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Article 9.1 was also considered to have been violated as well as Article 24.1 of the Covenant. Accordingly, the Committee urged the State Party to open a proper investigation into the disappearance of Ms. Laureano and her fate, to provide for appropriate compensation to the victim and her family and to bring to justice those responsible for her disappearance, notwithstanding any domestic amnesty legislation to the contrary. 2.2.J

Vicente and others v. Colombia

In 1997 the Committee delivered its views on Vicente and others v. Colombia,38 a case where the authors of the communication were all members of the indigenous community of Arhuaco, residing in Vallepadur, department of César, Colombia. The Committee was requested to declare the violation of Articles 2.3 (right to effective remedies), 6.1 (right to life), 7 (prohibition of torture), 9 (right to liberty and security), 14 (right to a fair trial) and 27 (cultural and spiritual rights) of the Covenant. On 28 November 1990 Luís Napoleón Torres Crespo, Angel María Torres Arroyo and Antonio Hagues Chaparro Torres boarded a bus for Bogotá, where they were expected to attend some meetings with governmental officials. The three people never reached their destination. They were last seen alive by the bus driver, who reported to the police of Curumani that, at 4 p.m., while stopping at a restaurant, four armed men had forced the three indigenous passengers to board a car. The police did not follow up the report and, even though three corpses compatible with the description of the disappeared were recovered on 2 December 1990, it was only on 14 and 15 December that they were exhumed and identified as belonging to the three indigenous leaders. The autopsy revealed that they had been tortured and then shot in the head. On the same day that the victims disappeared, the brothers of two of the victims were arrested, tortured and threatened that, if they did not help in clarifying that the abduction had been carried out by a guerrilla group of a local landowner, more members of the indigenous community would be killed. As regards domestic proceedings, military courts acquitted both the lieutenant-colonel and the colonel accused of the crimes and ordered all criminal proceedings against them to be discontinued. The disciplinary proceeding 38

HRC, Case Vicente and others v. Colombia, Communication No. 612/1995, 19 August 1997.


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carried out found them guilty of torture, arbitrary deprivation of liberty and murder and their summary dismissal from the army was ordered. This decision was ignored and the two officers retired from the army in December 1991 and September 1992 at their own request. The Committee considered the investigation and proceedings carried out by the military jurisdiction to be biased and non effective. It further applied the established criterion according to which in cases of especially grave allegations, like the violation of basic human rights, in particular the right to life, administrative and disciplinary remedies cannot be considered adequate and effective. As to the complaint under Article 27, the Committee considered that the authors had failed to substantiate how the actions attributed to the army and to the authorities of the State Party violated the right of the Arhuaco community to enjoy its own culture or to practise its own religion. Accordingly, that part of the complaint was declared inadmissible. The Committee considered Articles 6, 7, 9 and 2.3 of the Covenant to have been violated. Moreover, it noted that: The State Party has a duty to investigate thoroughly alleged violations of human rights, particularly enforced disappearances and violations of the right to life, and to criminally prosecute, try and punish those deemed responsible of such violations. This duty applies a fortiori in cases in which the perpetrators of such violations have been identified.39

2.2.K

Menanteau Aceituno and Carrasco Vásquez v. Chile

The views rendered on 4 August 1999 on the case Menanteau Aceituno and Carrasco Vásquez v. Chile,40 related to a disappearance that began on 19 November 1975 when Humberto Menanteau was seized at his parents’ house. José Carrasco was abducted from a friends’ house on the following day. On 10 December their relatives recognized the bodies at the morgue: they had been mutilated and bore evidence of torture. As members of the MIR (Movimento de Izquierda Revolucionario), they had previously been detained several times by the police and the DINA (Dirección de Inteligencia

39 40

Ibid., para. 8.8. HRC, Case of Menanteau Aceituno and Carrasco Vásquez v. Chile, Communication No. 746/1997, 4 August 1999.

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Nacional ). A witness later testified that he had seen them alive for the last time at the DINA headquarters. The military courts raised a conflict of competence with ordinary courts. It was resolved in favour of the II Military Court of Santiago which, on 23 March 1993, decreed the discontinuance of the case without going into further investigations, under the provisions of the Amnesty Decree No. 2191 of 1978 (decision ratified by the Corte Marcial on 14 December 1994). The authors of the communication alleged a violation of Articles 14 (right to a fair trial) and 15.2 (no punishment without law) of the Covenant. They claimed that, by applying the Amnesty Decree, Chile determined the impunity of those responsible for these acts, consequently depriving the victims and their families of the right to justice. Furthermore, the decisions of the military courts not to investigate the deaths of the victims were said to constitute a violation of the latter’s right to be recognized as a person before the law (Article 16). Chile conceded that the facts did occur as described by the authors, but it alleged that the creation by the government of a Truth and Reconciliation Commission by a Decree of 25 April 199041 and the subsequent establishment of the so-called Corporación Nacional de la Verdad y Reconciliación in February 1992 already constituted appropriate remedies within the meaning of Articles 2 and 3 of the Covenant. The State further affirmed that the obstacle to the conclusion of investigation on disappearance and summary executions, such as in the specific cases, remained the Amnesty Decree of 1978, adopted by the former military government. About this legislation, the State contended that: It is not possible to abrogate the Amnesty Decree of 1978, [. . .] adducing reasons: first, legislative initiatives such as those relating to amnesties can only be initiated in the Senate (Article 62 of the Constitution of Chile), where the government is a minority. Second, abrogation of the law would not necessarily have repercussions under criminal law for possible culprits, on account of the prohibition of retroactive application of criminal laws. This principle is enshrined in Article 19, lit. 3 of the Chilean Constitution and Article 15, paragraph 1 of the Covenant. Three, the composition of the Constitutional Court. Four, the designation of the Commanders in Chief of the Armed Forces; the President of the Republic may not remove the present officers, including

41

The Final Report of this Commission establishes a clear responsibility of members of the DINA for the disappearance and subsequent murder of the victims (Informe Final de la Comisión Nacional de Verdad y Reconciliación, 1991, p. 534).


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General Pinochet. Lastly the composition and attributions of the National Security Council (Consejo de Seguridad Nacional) restricts the attributions of the democratic authorities in all matters pertaining to internal or external national security.42

It was further observed by Chile that: The Amnesty Decree of 1978 may extinguish the criminal responsibility of those accused of crimes under the military regime, but it cannot in any way suspend the continuation of investigations that seek to establish what happened to individuals who were detained and later disappeared.43

In this case the Committee had the opportunity to pronounce on three thorny issues, namely: the responsibility of a State for violations of human rights committed under a previous regime; the compatibility of amnesty laws with the Covenant; and the appropriateness of remedies such as the creation of Truth and Reconciliation Commissions. But the opportunity was lost. Notwithstanding the fact that Chile had not challenged the admissibility of the communication, the Committee noted that the deaths of the victims occurred prior to the entry into force for Chile of the Covenant (ratified on 23 March 1976) and the Optional Protocol (ratified on 28 August 1992).44 This led claims to be considered inadmissible ratione temporis. It also found that a judgment of the Supreme Court of 1996, which dismissed the complaint filed on the grounds of abuse of power by the II Military Court of Santiago for having discontinued the case because of the Amnesty Decree, could not be regarded as a new event that affected the rights of a person who disappeared and was killed in 1975. 2.2.L Vargas Vargas v. Chile On 24 September 1999 the Committee delivered its views on another case concerning Chile: Vargas Vargas v. Chile.45 The facts occurred in 1973 in circumstances similar to those of the Menanteau Aceituno and Carrasco

42 43 44

45

HRC, Case Menanteau Aceituno and Carrasco Vásquez, supra note 40, para. 4.3. Ibid., para. 4.4. Ibid., para. 6.2: “In ratifying the competence of the Human Rights Committee to receive and consider communications from individuals, it is the understanding of the government of Chile that this competence applies in respect of acts occurring after the entry into force for that State of the Optional Protocol or, in any event, to acts which began after 11 March 1990”. HRC, Case Vargas Vargas v. Chile, Communication No. 718/1996, 24 September 1999.

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Vásquez case. Again, although the State Party had not explicitly challenged the admissibility of the communication ratione temporis, the Committee declared it inadmissible. Two members of the Committee, Christine Chanet and Fausto Pocar, gave an individual opinion dissenting on the dismissal of the case on the grounds of the ratione temporis reservation lodged by Chile at the time of its accession to the Optional Protocol. They argued that: The fact that judicial decisions taken by the State Party were adopted after the date Chile had specified in its reservation and that the problem raised in connection with Article 16 (right to recognition as a person before the law) of the Covenant relates to a situation which, as long as it is not permanently ended, has long-term consequences. [. . .] This right survives a fortiori when the absence of the person is surrounded by uncertainty; he or she may reappear, and even if not present, does not cease to exist under the law; it is not possible to substitute civil death for confirmed natural death.46

2.2.M

Coronel and others v. Colombia

On 29 November 2002, in the case Coronel and others v. Colombia,47 the Committee was required to pronounce on the enforced disappearance of six members of a Colombian indigenous community. The authors of the communication claimed the violation of Articles 2.3 (right to effective remedies), 6.1 (right to life), 7 (prohibition of torture), 9 (right to liberty and security) and 17 (right to respect for private and family life) of the Covenant. No violation of the cultural and religious rights of the indigenous community was alleged. The six indigenous people were illegally arrested by members of the army in January 1993 during a search operation. Some of their dead bodies were found ten days after their disappearance and the others were exhumed seven months later. A few days after their disappearance, a sixteen-yearold member of the same community also disappeared while its family members, including six minors, were being held closed in their house, ill treated and harassed. The boy was found dead a few days later. The Committee found that all the provisions invoked by the authors of the communication had been violated. However, having regard to the cir-

46 47

Ibid., Appendix. HRC, Coronel and others v. Colombia, Communication No. 778/1997, 29 November 2002.


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cumstances of the case, also violations of Articles 23 (rights of the family) and 24 (rights of the children) of the Covenant48 could have been alleged by the victims or autonomously declared by the Committee. 2.2.N

Jegatheeswara Sarma v. Sri Lanka

The gravity of the situation of enforced disappearances in Sri Lanka can be understood from the views adopted in 2003 by the Committee in the case Jegatheeswara Sarma v. Sri Lanka.49 The son of the author of the communication, Mr. Sarma, was abducted on 23 June 1990 from his family residence by army members during a military operation. The boy, who was suspected of being a member of the LTTE (Liberation Tigers of Tamil Eleam), was beaten, tortured and was moved several times to various army camps. His father denounced what had happened to the police, the International Red Cross Committee and human rights groups. Arrangements were made by the International Red Cross for relatives of missing people to meet, in groups of 50, with Brigadier Pieris, to learn about the situation of those missing. During one of these meetings, in May 1991, the wife of the author was told that her son was dead. Nonetheless, the author of the communication claimed that he saw his son alive in a yellow military van a few months later. He asked both the Prime Minister and the Presidential Commission of Inquiry into Involuntary Removals and Disappearances in the Northern and Eastern Provinces about the fate of his son. In March 1993, July 1995, July 1998, February 1999 and again in March 1999, the military stated that his son had never been taken into custody.

48 49

HRC, Case Celis Laureano, supra note 27. HRC, Case Jegatheeswara Sarma v. Sri Lanka, Communication No. 950/2000, 31 July 2003. “Youth in the North and East disappeared in droves in the latter part of 1989 and during the latter part of 1990. This large scale disappearances of youth is connected with the military operations started against the JVP in the latter part of 1989 and against the LTTE during Eleam War II beginning in June 1990 (. . .). It was obvious that a section of the army was carrying out the instructions of its Political Superiors with a zeal worthy of a better cause. Broad power was given to the army under the Emergency Regulations which included the power to dispose of the bodies without post-mortem or inquests and this encouraged a section of the army to cross the invisible line between the legitimate Security Operation and large scale senseless arrests and killings” (ibid., para. 8.2).

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The Committee noted that the State Party had not denied that the victim had been abducted by an officer of the Sri Lankan army and had remained unaccounted for since then. It considered that, for the purposes of establishing State responsibility, it was irrelevant that the officer to whom the disappearance was attributed acted ultra vires or that superior officers were unaware of the actions taken by him. It concluded that, in the circumstances, Sri Lanka was responsible for the disappearance of the son of Mr. Sarma. The Committee considered that Articles 2.3 (right to effective remedies), 7 (prohibition of torture) and 9 (right to liberty and security) of the Covenant had been violated, the latter with regard both to the material victim and to his relatives. As for the possible violation of the right to life of the victim (Art. 6), the Committee noted that: The author has not asked the Committee to conclude that his son has died. Moreover, while invoking Article 6, the author also asks for the release of his son, indicating that he has not abandoned hope for his son’s reappearance. The Committee considers that, in such circumstances, it is not for it to appear to presume the death of the author’s son. Insofar as the State Party’s obligations under paragraph 11 below would be the same with or without such a finding, the Committee considers it appropriate in the present case not to make any finding in respect of Article 6.50

The view of the Committee on this point may seem in conflict with internationally established jurisprudence51 on the violation of right to life in cases of enforced disappearance. The Committee itself, in its first decisions,52 had reverted the burden of the proof in cases of enforced disappearances, admitting the presumption of violations of the right to life. This approach was not followed in the Jegatheeswara Sarma case, probably because the Committee did not want to defeat the evident hope of the father of the victim to see his son still alive. Such an uncertain situation constitutes the “limbo” or the “grey-area” where relatives of disappeared persons lose themselves: the fear that the loved one has died, perhaps after terrible sufferings, does not cancel the endless expectation to find him again.

50 51

52

Ibid., para. 9.6. See, inter alia, IACHR, Case Velásquez Rodríguez, infra 2.3.A; EHCR, Case Timurtas, infra 2.4.C. See, inter alia, HRC, Case Bleier, supra 2.2.A.


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2.2.O Yurich v. Chile In 2005 the Committee delivered its views on the case Yurich v. Chile.53 The case referred to facts that happened in 1974, when eight armed people in plain clothes who identified themselves as agents of the DINA (Dirección de Inteligencia Nacional ) apprehended Jaqueline Yurich Drouilly, member of the MIR revolutionary group (Movimiento de Izquierda Revolocionario). At the moment of her detention Mrs. Drouilly was pregnant. Her fate and whereabouts, as well as the fate and whereabouts of her child, remain unknown. Her husband also disappeared on the following day. According to witnesses the couple was last seen in the headquarters of the DINA. They both showed evidence of torture. All the reports presented by Mrs. Norma Yurich, the mother of Mrs. Drouilly, were dismissed by the Chilean authorities. Chile alleged the inadmissibility ratione temporis of the case. The Covenant entered into force on 23 March 1976, over 2 years after the events had taken place. When Chile ratified the Optional Protocol recognizing the competence of the Committee, it deposited a declaration according to which the Committee was competent only for the violations that occurred after 11 March 1990. In its analysis of the complaint the Committee referred to the definition of the offence of enforced disappearance provided by the 1998 Rome Statute.54 According to the Committee, both the deprivation of liberty of the victim and the refusal to acknowledge such deprivation by the Chilean authorities occurred before the entry into force of the Covenant with respect to Chile. Later on the respondent State no longer denied the disappearance, but acknowledged its responsibility. The author of the communication was not able to mention any “action of the State that would constitute a confirmation of the enforced disappearance which occurred after 28 August 1992 (date of the entry into force of the Optional Protocol for Chile)”.55 For these reasons the Committee declared the case inadmissible, giving priority to the ratione temporis objection over the continuous nature of the crime. The views taken by the Committee in the Yurich case represent a regrettable step backwards. The Committee substantially denied the continuing nature of the offence of enforced disappearance, which in principle lasts

53 54 55

HRC, Case Yurich v. Chile, Communication No. 1078/2002, 12 December 2005. On the definition of the offence, see infra 4.2. HRC, Case Yurich, supra note 53, para. 6.4.

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until the fate of the victim is ascertained. This was clearly pointed out in the dissenting opinion signed by five members of the Committee:56 Disappearance, as the Committee itself indicates in paragraph 6.4 of its decision, constitutes a continuing violation. The continuing nature of this violation precludes the application of the exception ratione temporis and of the reservation of Chile, insofar as the latter cannot exclude the competence of the Committee with regard to ongoing violations. The solution adopted by the Committee entails discharging the State of its responsibility for the sole reason that the State does not deny the criminal acts, as demonstrated by the fact that it has taken no action to “confirm” the enforced disappearance. [. . .] Indeed, to evade its responsibility, the State cannot limit itself to adopting an attitude of passive consent: it must provide evidence that it has used all available means to determine the whereabouts of the disappeared person. This was not done in the present case, and the undersigned cannot agree that there has been no violation of the Covenant.57

In the specific case, the fate and whereabouts of the victim remained unknown after the date on which the Covenant and the Optional Protocol entered into force for Chile. Since then Chile neither made an effective investigation into the facts of the case nor did those responsible ever undergo an appropriate trial. Chile was thus continuing to violate the provisions of the Covenant with respect to both the material victim and her mother.58 The criterion applied by the Committee that apparently requires the author of a communication to demonstrate that a State has “undertaken actions that would constitute a confirmation of the disappearance” lacks any normative or judicial basis and acts to the full detriment of the victim.

56

57 58

Ibid., dissenting opinion of C. Chanet, R. Lallah, M. O’Flaherty, E. Palm and H. Solari Yrigoyen. Ibid. The author of the communication alleged the violation of her right to personal integrity as to her suffering, which amounted to inhuman treatment, for the disappearance of her daughter and the subsequent denial of justice. The Committee declared inadmissible also this part of the communication because “the State Party considers these claims to be of a general nature and that domestic remedies have not been exhausted in this regard. The Committee notes that the author has not demonstrated that she has availed herself of such remedies” (ibid., para. 6.5). However, internationally established principles on the issue reverse the burden of proof, putting on the respondent State the onus to demonstrate the existence of appropriate and effective remedies. In the Yurich case, the Committee imposed the burden of proof on the author of the communication and admitted the general allegation of the State concerning the existence of domestic remedies that had not properly been exhausted without any further specification.


2.2.P

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Bousroual v. Algeria

In 2006 the Committee delivered views on another non-Latin American case, Bousroual v. Algeria.59 The author submitted the communication on behalf of her husband, Salah Saker, who has been missing since 29 May 1994. She claimed that her husband is a victim of violations by Algeria of Articles 2.3 (right to effective remedies), 6.1 (right to life), 9.1, 9.3, 9.4 (right to liberty and security), 10.1 (rights of persons deprived of liberty), and 14.3 (right to a fair trial) of the Covenant. Mr. Saker, a teacher, was arrested without a warrant on 29 May 1994 at 18.45 at his home, as part of a police operation carried out by agents of the town of Constantine. At the time of his arrest, Mr. Saker was a member of the Front Islamiste de Salut (Islamic Salvation Front), a prohibited political party for which he had been elected in the annulled legislative elections of 1991. Mr. Saker’s wife submitted several requests to be informed on the reasons of his arrest to the competent Algerian authorities. She did not receive any satisfactory reply for over 3 years. On 27 February 1997 Ms. Bousroual received a letter from the judicial Police section of the Security of Constantine, forwarding a copy of a decision by the Director of Public Prosecutions of the Tribunal of Constantine dated 4 September 1996. It informed her that her husband had been arrested and was being held at the Territorial Centre for Research and Investigation of Military Area No. 5. The decision did not indicate the reasons for the arrest. Almost one year later the National Observatory for Human Rights informed Ms. Bousroual that, according to information received from the security services, Mr. Saker had been kidnapped by a non-identified armed group while in the custody of the Territorial Centre and that the authorities did not have any other information as to his whereabouts. Ms. Bousroual understood the letter as informing of her husband’s death. When the communication had already been presented to the Committee, Algeria, raising an objection of non-exhaustion of domestic remedies, also provided some information on Mr. Saker’s disappearance. Apparently he had been taken in for questioning on 12 June 1994 by the police. After being held for three days he had been handed over to the military branch of the judicial police for further questioning on 15 June 1994. As soon as they had finished questioning him, Mr. Saker had been released. However, as he had been accused of being a member of a terrorist organization, he was sentenced to death in absentia on 29 July 1995.

59

HRC, Case Bousroual v. Algeria, Communication No. 992/2001, 24 April 2006.

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The Committee rejected the government’s objection, considering that the application of domestic remedies had been unduly prolonged. Further, it found that Algeria had not demonstrated that the other remedies it referred to would have been effective, in the light of the serious and grave nature of the allegation and the repeated attempts made by Ms. Bousroual to elucidate the whereabouts of her husband. As to the violation of Article 14.3, the Committee considered that the author’s allegations had been insufficiently substantiated for the purposes of admissibility, nor did it consider it necessary to address Ms. Bousroual’s claims under Article 10. With regard to the other alleged violations, the Committee referred to the definition of enforced disappearance provided by the 1998 Rome Statute60 and further clarified that: Any act of such disappearance constitutes a violation of many of the rights enshrined in the Covenant, including the right to liberty and security of the person (Art. 9), the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Art. 7), and the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person (Art. 10). It also violates or constitutes a grave threat to the right to life (Art. 6).61

The Committee recalled its precedent case law on the reversal of the burden of proof in cases of disappearance on the basis that, in certain circumstances, the State Party alone has access to the relevant information and concluded that Algeria had not responded to the sufficiently detailed allegations expressed by Ms. Bousroual, nor submitted any evidence such as arrest warrants, release papers, records of interrogation or detention. Therefore, the Committee found a violation of Article 9.1, 9.3 and 9.4 of the Covenant. The Committee noted that, while not specifically invoked by Mrs. Bousroual, the communication appeared to raise issues under Article 7

60

61

See infra 3.3 and 4.2. The HRC further recalled the General Comment No. 6 it made in 1982 on Article 6 (Compilation, supra note 21, p. 6): “States Parties should also take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life” (para. 4). HRC, Case Bousroual, supra note 59, para. 9.2.


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(prohibition of torture) of the Covenant in relation to Ms. Bousroual and her husband. The Committee recognized the degree of suffering involved in being held indefinitely without contact with the outside world. In the circumstances, the Committee concluded that the disappearance of Mr. Saker and the prevention of contact with his family and with the outside world constituted a violation of Article 7 of the Covenant. The Committee also noted the anguish and stress caused to Ms. Bousroual by the disappearance of her husband and the continued uncertainty concerning his fate and whereabouts and declared a violation of Article 7 of the Covenant with regard to the Ms. Bousroual herself. The Committee also declared the violation of Article 6.1 as Algeria had failed to protect Mr. Saker’s life and had not carried out any effective investigation on his fate and whereabouts. Finally, the Committee declared a violation of Article 2.3 because it considered that Ms. Bousroual had not been granted any effective remedy. The Committee concluded that: the State Party is under an obligation to provide the author with an effective remedy, including a thorough and effective investigation into the disappearance and fate of the author’s husband, his immediate release if he is still alive, adequate information resulting from its investigation transmitted to the author, and appropriate levels of compensation for the violations suffered by the author’s husband, the author and the family. The State Party is also under a duty to prosecute criminally, try and punish those held responsible for such violations. The State Party is also under an obligation to take measures to prevent similar violations in the future. [. . .] The State Party is also requested to publish the Committee’s views.62

2.2.Q

Boucherf v. Algeria

In 2006 the Committee delivered its views also on the case Boucherf v. Algeria.63 The Special Rapporteur of the Committee on new communications

62 63

Ibid., paras. 11 and 12. HRC, Case Boucherf v. Algeria, Communication No. 1196/2003, 27 April 2006. In relation to Algeria, in the context of the State reporting procedure, the HRC has stressed its grave concern: “at the number of disappearances and at the failure of the State to respond adequately, or indeed at all, to such serious violations. Disappearances may involve the right guaranteed under Article 16 of the Covenant which provides that every individual shall have the right to recognition everywhere as a person before the law. In this situation these individuals are also deprived of their capacity to exercise all the other rights, without any

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and interim measures called the respondent State for the application of interim measures, requesting it not to invoke against individuals who have submitted or may submit communications to the Committee the provisions of the State Party’s draft amnesty law (Projet de Charte pour la Paix et la Réconciliation Nationale).64 In particular the author of the communication alleged that the draft law was likely to cause irreparable harm to the victims of disappearances. The relevant provision of the draft law states as follows: No one, in Algeria or abroad, has the right to use, or make use of, the wounds caused by the national tragedy in order to undermine the institutions of the People’s Democratic Republic of Algeria, render the State fragile, question the integrity of all the agents who served it with dignity, or tarnish the image of Algeria abroad. [. . .] Rejecting all allegations aiming at rendering the State responsible for deliberate disappearances, the Algerian people consider that reprehensible acts on the part of the State agents, which have been punished by law each time they have been proved, cannot be used as a pretext to discredit the whole of the security forces who were doing their duty for their country and received public backing.65

The Committee avoided expressing articulated views on the Algerian draft amnesty law which was submitted to a referendum. However, it associated itself with the Special Rapporteur reiterating that Algeria should not rely on the draft amnesty law against individuals who invoke the provisions of the Covenant before the Committee. Indeed, the Committee, while using the conditional tense should, condemned a piece of legislation which, if applied, could only frustrate the aim of protecting most of the human rights enshrined in the Covenant and can lead to a denial of justice for the victims.66 The author of the communication was Fatma Zohra Boucherf, the mother of Riad Boucherf, who disappeared on 25 July 1995. Allegedly, Mr. Boucherf was arrested together with two other people by five plainclothes policemen. Five days later also Mrs. Boucherf ’s other son (Amine Boucherf ) was arrested by a policeman who arrived at his house in the same car that had

64 65

66

recourse, recognized under the Covenant. Furthermore, disappearances violate Article 7 with regard to the relatives of the disappeared” (Concluding Observations of the HRC on the report of Algeria, CCPR/C/79/Add.95, 18 August 1998). On amnesty laws and similar measures, see infra 4.8. For an overview of the general contents of the draft law, see http://www. algeria-watch. org/fr/article/pol/amnistie/projet_charte.htm. Two cases of disappearances concerning Algeria are pending within the HRC.


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been seen on the day of his brother’s abduction. On 5 August 1995 Amine Boucherf and the other two prisoners were released. However, the fate and whereabouts of Riad Boucherf have remained unknown ever since. The three released prisoners confirmed that he was held together with them at the police station of the Algiers 17th arrondissement and that they were all subjected to severe tortures. In her communication Mrs. Boucherf presented to the Committee several other witnesses who accounted for the presence of her son in various Algerian detention centres. He was reported by other co-detainees to be in poor health conditions and subjected to torture. However, Mrs. Boucherf did not find her son at any of the mentioned centres, as the competent authorities always denied his presence. Between November 1995 and February 1998 Mrs. Boucherf submitted 14 complaints to the Algerian authorities. All her attempts to establish the fate and whereabouts of her son failed. In April 2003 the investigative magistrate of the Tribunal of Hussein Dey decided that there were no grounds for prosecution. This decision was confirmed in September 2004. Algeria contested the admissibility of the communication for nonexhaustion of domestic remedies. The Committee rejected this objection as the State Party had failed to respond on allegations of the author of the communication and the application of domestic remedies had been unduly prolonged. Mrs. Boucherf requested the Committee to declare the violation of Articles 2.3 (right to effective remedies), 7 (prohibition of torture), 9 (right to liberty and security), 14 (right to a fair trial) and 16 (right to recognition as a person before the law) of the Covenant. As to the violation of Article 14, the Committee considered the author’s allegations to be insufficiently substantiated. Nor did it consider it necessary to deal with the complaint with respect to Article 16. Applying the principle of the reversal of the burden of proof, it found violations of Articles 2.3, 7 (also with respect to the author herself ) and 9 of the Covenant. It declared the State Party to be under an obligation to provide the author with an effective remedy, including a thorough investigation into the disappearance of her son, adequate information on the results of the investigation, adequate compensation, as well as criminal prosecution, trial and punishment of those found to be responsible.

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2.3


The Interamerican Court of Human Rights

The Interamerican Court of Human Rights is the international body which provided the most significant contribution towards the development of substantive and procedural rules on the matter of enforced disappearance.67 As remarked, “its reparation orders in the last decade have become the most sweeping and fully restorative of any international court”.68 Moreover, the Court consistently broadened the concept of victim of an act of enforced disappearance, by including all those relative who have a “special tie” with the material victim and by presuming the violation of their right not to be subjected to inhuman and degrading treatment.69 2.3.A Velásquez Rodríguez v. Honduras In 1988 and 1989 the Interamerican Court rendered its first three judgments on cases that all related to enforced disappearance that took place in Honduras.70 The Court stressed the complex character of the offence of enforced disappearance: The phenomenon of disappearances is a complex form of human rights violation that must be understood and confronted in an integral fashion. [. . .] The forced disappearance of human beings is a multiple and continuous violation of many rights under the Convention that the States Parties are obliged to respect and guarantee.71

67

68 69 70

71

The case Juan Humberto Sánchez v. Honduras, judgment of 7 June 2003, Ser. C No. 99 (Merits), will not be analyzed in this paragraph. However, it will be referred to, infra 4.12, insofar as it relates to the fate and whereabouts of the human remains of a victim and the implementation of the measures of reparation ordered by the IACHR. D. Cassel, “Book Review”, in AJIL, 2006, p. 505. See infra 4.13. See infra 4.10. IACHR, Case Vélasquez Rodríguez, judgment of 26 June 1987, Ser. C No. 1 (Preliminary Objections); judgment of 29 July 1988, Ser. C No. 4 (Merits); and judgment of 21 July 1989, Ser. C No. 7 (Reparations); Case Godínez Cruz, infra 2.3.B; Case Fairén Garbi and Solís Corrales, infra 2.3.C. The ICommHR presented some common witnesses for the three cases. In view of the ongoing threats that these people were receiving, the Court ordered Honduras to adopt special measures to protect the witnesses, their families and their belongings. Notwithstanding, on 5 January 1988 one of the witnesses was murdered in the street by a group of armed men and, ten days later, two other witnesses were killed as well. IACHR, Case Velásquez Rodríguez (Merits; supra note 70), paras. 150 and 155; Case


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In all the three cases the Court dealt with the preliminary objection of non-exhaustion of domestic remedies.72 To consider admissible such an objection, the Court decided that a remedy: Must also be effective – that is, capable of producing the result for which it was designed. Procedural requirements can make the remedy of habeas corpus ineffective: if it is powerless to compel the authorities; if it presents a danger to those who invoke it; or if it is not impartially applied.73

As regards the effectiveness of the remedies available in Honduras, the Court heard several witnesses, including members of the Legislative Assembly of the country (Asamblea Legislativa del País), lawyers, relatives of disappeared persons and people who had disappeared but had survived the experience. All of them concurred that in Honduras, between 1981 and 1984, disappearances were a common practice, tolerated and committed by governmental authorities. Testimonies proved that all the lawyers who had somehow been involved in dealing with cases of disappearance were victims of threats, attacks and intimidations, that any effort to carry out investigations was obstructed and that requests for assistance were always evaded by the police. The Court consequently rejected the preliminary objection put forward by the representatives of Honduras, concluding that: The testimony and other evidence received and not refuted leads to the conlusion that, during the period under consideration, although there may have been legal remedies in Honduras that theoretically allowed a person detained

72

73

Godínez Cruz (Merits; infra 2.3.B), paras. 158 and 163; and Case Fairén Garbi and Solís Corrales (Merits; infra 2.3.C), para. 147. When this conclusion was reached the Inter-american Court did not have any normative reference. Article 46.1.a of the American Convention: “Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements: a. that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law. [. . .] 2. The provisions of paragraphs 1.a and 1.b of this article shall not be applicable when: a. the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated; b. the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or c. there has been unwarranted delay in rendering a final judgment under the aforementioned remedies”. IACHR, Case Velásquez Rodríguez (Merits; supra note 70), para. 66; Case Godínez Cruz (Merits; infra 2.3.B), para. 69; and Case Fairén Garbi and Solís Corrales (Merits; infra 2.3.C), para. 91.

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by the authorities to be found, those remedies were ineffective in cases of disappearances because the imprisonment was clandestine; formal requirements made them inapplicable in practice; the authorities against whom they were brought simply ignored them, or because attorneys and judges were threatened and intimidated by those authorities.74

Another fundamental issue addressed by the Court in all the three cases was the burden of proof with regard to enforced disappearances. The Interamerican Commission of Human Rights, which brought the cases to the Court and was in principle charged with proving the accusations, assumed that a policy, supported or tolerated by the government, was designed to conceal and destroy evidence of disappearances. According to the Commission, when the existence of such a policy was demonstrated, the disappearance of a particular individual could be proved through circumstantial or indirect evidence or by logical inference. Otherwise it would be impossible to prove that an individual has disappeared.75 As the American Convention does not specifically deal with the issue of the evaluation of proof, the Court accepted a liberal, but fully justified, interpretation which makes it possible for the victims to tackle the serious problem of collecting evidence in cases of enforced disappearances. It could not find any reason to consider the Commission’s argument inadmissible. If it can be shown that there was an official practice of disappearances in Honduras, carried out by the Government or at least tolerated by it, and if the disappearance of Manfredo Velásquez can be linked to that practice, the Commission’s allegations will have been proven to the Court’s satisfaction, so long as the evidence presented on both points meets the standard of proof required in cases such as this. [. . .] The standards of proof are less formal in an international legal proceeding than in a domestic one. The latter recognize different burdens of proof, depending upon the nature, character and seriousness of the case. [. . .] Circumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim.76

74

75

76

IACHR, Case Velásquez Rodríguez (Merits; supra note 70), para. 80; Case Godínez Cruz (Merits; infra 2.3.B), para. 87; and Case Fairén Garbi and Solís Corrales (Merits; infra 2.3.C), para. 102. IACHR, Case Velásquez Rodríguez (Merits; supra note 70), para. 80; Case Godínez Cruz (Merits; infra 2.3.B), para. 87; and Case Fairén Garbi and Solís Corrales (Merits; infra 2.3.C), para. 102. IACHR, Case Velásquez Rodríguez (Merits; supra note 70), paras. 126, 128 and 131; Case


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As a matter of fact Honduras did not devote much attention to the questions of evidence, but rather tried to discredit the witnesses by defining their will to testify as a form of “disloyalty towards the country”. The Court did not accept this assumption, pointing out that, within the Interamerican system of protection of human rights, the State is at the service of the whole community. In the Velásquez Rodríguez v. Honduras case77 the victim was a student of the Universidad Autónoma de Honduras who in September 1981 was abducted by seven members of the DINA (Dirección Nacional de Investigación, the national intelligence service). After having apprehended him, the agents forced the boy into a white car with black windows and no number plate. According to witnesses, Mr. Rodríguez was then taken to the headquarters of Security Forces in Tegucigalpa to be questioned and later moved to other unofficial detention places where he was tortured, beaten and in the end hacked to death with a machete. His body was cut into pieces and buried in different locations. The Interamerican Commission, when referring the case to the Court, alleged the violation of three provisions of the American Convention on Human Rights (San José, 1969; hereinafter “the American Convention”), namely Articles 4 (right to life), 5 (right to humane treatment) and 7 (right to personal liberty). Honduras rejected any responsibility, alleging that there had been a political change within the governing party and the composition of the Parliament since the time when the facts had happened. The Court dismissed this defence, considering political changes to be totally irrelevant in the process of determining the international responsibility of States for violations of human rights.78 As requested by the Commission the Court, in its judgment of 29 July 1988, found that Articles 4, 5 and 7 of the American Convention had been violated. The Court also found that the three above mentioned provisions had been violated in conjunction with Article 1.1 of the Convention, which provides for the general obligation of State Parties to respect rights.79 Even

77 78 79

Godínez Cruz (Merits; infra 2.3.B), paras. 132, 134 and 137); and Case Fairén Garbi and Solís Corrales (Merits; infra 2.3.C), paras. 129 and 131. IACHR, Case Velásquez Rodríguez, supra note 70. The same objection was rejected also in the other two cases. Article 1: Obligation to Respect Rights. “1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any

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if the Interamerican Commission had not expressly evoked this provision, the Court recalled the iura novit curia principle, stating that Article 1 is the real fundament of the whole American system of protection of human rights and adding that: The existence of the practice of enforced disappearance, moreover, evinces a disregard of the duty to organize the State in such a manner as to guarantee the rights recognized in the Convention, as set out below. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.80

Finally, the Court ordered to Honduras to pay compensation for pecuniary and non-pecuniary damages. 2.3.B

Godínez Cruz v. Honduras

In the Godínez Cruz case, decided on the merits by the Court on 20 January 1989,81 the Commission alleged the violation of the same three provisions of the American Convention which were invoked in the Velásquez Rodríguez case. Mr. Cruz, a Honduran professor involved in politics and a member of a trade union of professors, was abducted while going to work in July 1982. A witness stated that a uniformed man helped by two civilians took Mr. Cruz away and then forced him and his motorcycle into a van with black windows and no number plate. His neighbours testified that, for a few days before his disappearance, some men had been watching his house and had followed him wherever he went during the day. A former detainee of Penitenciaria Central of Tegucigalpa declared that in 1983 Mr. Cruz was detained in this prison, in solitary confinement, still alive although in extremely poor physical state. This was the last information about his fate and whereabouts. The

80

81

discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition”. IACHR, Case Velásquez Rodríguez (Merits; supra note 70), paras. 158 and 166. The IACHR recalled the case law of the ECHR, namely the judgment Handyside v. United Kingdom, 7 December 1976, para. 41. IACHR, Case Godínez Cruz v. Honduras, judgment of 26 June 1987, Ser. C No. 3 (Preliminary Objections); judgment of 20 January 1989, Ser. C No. 5 (Merits); and judgment of 21 June 1989, Ser. C No. 8 (Reparations).


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government of Honduras, asked several times both by the relatives of the victim and the Interamerican Commission to provide information, never answered nor cooperated. It finally declared its total incapability to identify those responsible for the disappearance of Mr. Cruz. Referring to the attitude shown by the respondent State, the Court declared that: The manner in which the government conducted its defence would have sufficed to prove many of the Commission’s allegations by virtue of the principle that the silence of the accused or elusive or ambiguous answers on its part may be interpreted as an acknowledgment of the truth of the allegations, so long as the contrary is not indicated by the record or is not compelled as a matter of law. This result would not hold under criminal law, which does not apply in the instant case. The Court tried to compensate for this procedural principle by admitting all the evidence offered, even if it was untimely, and by ordering the presentation of additional evidence. This was done, of course, without prejudice to its discretion to consider the silence or inaction of Honduras or to its duty to evaluate the evidence as a whole.82

Again the Court found that Articles 4, 5 and 7 of the American Convention had been violated, in conjunction with Article 1.1. It ordered Honduras to pay compensation for pecuniary and non-pecuniary damage. 2.3.C Fairén Garbi and Solís Corrales v. Honduras The Fairén Garbi and Solís Corrales case83 related to two Costa Rican citizens who disappeared in Honduras on 11 December 1981 while they were crossing the country heading for Mexico. Despite the existence of some official certificates issued when crossing the border with Nicaragua, Honduras repeatedly denied that the two people had ever entered the country. Three years after the disappearance of the victims, due to the increasing pressure exercised by their relatives and human rights organizations, a national commission of investigation was set up in order to ascertain the truth and verify the reliability of the accusations brought against members of the army. After over two years of investigation no concrete result was reached. Both before the Commission and the Court Honduras hardly cooperated at all, contradicting itself on several occasions.

82 83

IACHR, Case Godínez Cruz (Merits; supra note 81) para. 144. IACHR, Case Fairén Garbi and Solís Corrales, judgment of 26 June 1987, Ser. C No. 2 (Preliminary Objections); judgment of 15 March 1989, Ser. C No. 6 (Merits).

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The Court found that the evidence presented by both the government and the Commission was confused and contradictory. It concluded that it could not hold as proved the alleged disappearance of the two Costa Rican citizens. This is, to date, the only case of enforced disappearance ruled by the Interamerican Court where no violation of the American Convention has been found. 2.3.D The Provisional Measures in the Case Reggiardo Tolosa v. Argentina In 1993 the Interamerican Court adopted provisional measures84 on a case relating to children born during the captivity of their disappeared parents (Reggiardo Tolosa v. Argentina).85 The Interamerican Commission, which had received a report by the non governmental organization Abuelas de Plaza de Mayo, required the Court to adopt provisional measures relating to the two minors Gonzalo Xavier and Matías Angel, who were sons of the disappeared couple María Rosa Ana Tolosa and Juan Enrique Reggiardo. According to the petition, the boys were born in April 1977 while their mother was in captivity and they were abducted and registered as sons of Samuel Miara, former officer of the federal police, and his wife, Beatriz Alicia Castillo. When they were eleven years old they discovered that Mr. Miara and Mrs. Castillo were not their real parents. In 1985 they were taken to Paraguay where they lived under house arrest until 1989, when they were brought back to Argentina. Temporary custody was granted to a substitute family while they were waiting for the results of genetic tests. The request presented to the Court alleged that, even though there was significant evidence about the real origins of Gonzalo Xavier and Matías Angel, the two minors were still being kept under the control of the people who had abducted them and concealed their identity by forging their 84

85

Article 63.2 of the American Convention: “In cases of extreme gravity and urgency, and when necessary to avoid irreparable damages to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission”. This overview will not refer to the various provisional measures adopted by the IACHR to protect witnesses or relatives in cases of enforced disappearance judged by it. IACHR, Case Reggiardo Tolosa v. Argentina (Provisional Measures), Resolutions of 19 November 1993 and 19 January 1994.


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documents. The Commission considered this situation to be of “extreme gravity and urgency”, assuming that the unjustified prolongation of the period of doubt about their real identity could irreparably undermine the psychological state of the minors. Accordingly, the Commission asked the Court to order the immediate transfer of the boys to an institute where they could be placed in temporary custody and given suitable psychological treatment until they could return to their family of origin. The Court considered that, although the case was not on its file, the psychological integrity of the minors was at risk and it was necessary to prevent their suffering irreparable harm caused by the alleged situation. The Court ordered Argentina to adopt without delay all the necessary measures to protect the psychological integrity of Gonzalo Xavier and Matías Angel. In 1994, examining the state of the case, the Court found that Argentina had complied with its obligations, as domestic courts had delivered an injunction ordering the discontinuance of the temporary custody and the restitution of the two boys to their family of origin. 2.3.E

Neira Alegría and others v. Peru

In 1995 the Court rendered a judgment on the merits in the case Neira Alegría and others v. Peru86 relating to the disappearance of Víctor Neira Alegría, Edgar Zenteno Escobar and William Zenteno Escobar. The three victims, at the moment when the facts occurred, were being detained in Lima at the correctional centre known as El Frontón awaiting trial for offences related to terrorism. On 18 June 1986 there was a riot at the correctional centre that was consequently declared by the government a “restricted military area”. From that date, the area was under the control of the Peruvian army that proceeded to put down the riot. Some of the detainees were transferred to another correctional centre, while 111 people died as the result of the shelling of the building by the army. However, the three victims of the case did not appear among the transferred detainees or among the human remains identified after the explosion.87 Their fate and whereabouts remain

86

87

IACHR, Case Neira Alegría and others v. Peru, judgment of 11 December 1991, Ser. C No. 13 (Preliminary Objections); judgment of 19 January 1995, Ser. C No. 20 (Merits); and judgment of 19 September 1996, Ser. C No. 29 (Reparations). Ninety-seven corpses were exhumed, of which only 7 were identified. However, there is a significant discrepancy on the number of people who died during the the riot. According

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unknown. No impartial and thorough investigation has ever been carried out by Peruvian authorities, notwithstanding several requests by the relatives of the victims. In its judgment the Court reiterated its case law on the burden of the proof of enforced disappearances by stating that it was not the task of the Interamerican Commission to determine the whereabouts of the three victims. Instead, because of the circumstances at the time (the prisons and subsequently the investigations were under the exclusive control of the government), the burden of proof was the duty of the defendant State. According to the Court, as the three victims were in the custody of the Peruvian authorities at the moment of the riot and as their names did not result as being among the survivors or among the identified dead people, over 14 years after the event, it could be inferred that they had died in the explosion of the correctional centre. The Court considered as a proven fact that the use of force by the Peruvian army in putting down the riot was disproportionate. Accordingly, the Court declared the violation of Articles 4.1 (right to life) and 7.6 (right to personal liberty) in conjunction with Article 1.1 (obligation to respect rights) of the American Convention. The Court did not find any violation of Article 5 (right to humane treatment) with regard to the material victims of the case, as it had not been demonstrated that they had been subjected to cruel treatment or that the Peruvian authorities had offended their dignity during the time that they were being detained. There was no allegation of inhuman treatment with respect to the relatives of the victim. Finally, the Court rejected the allegations of the violation of Articles 8 (right to a fair trial) and 25 (right to judicial protection). In 1996 the Court rendered its judgment on reparations, where it ordered Peru to pay pecuniary compensation to the relatives of the victims, to take all necessary measures to locate and identify the mortal remains of the victims and to deliver them to their relatives.

to the proceedings carried out by military tribunals, there were 111 causalities and 34 survivors, which adds up to a total of 145 people. But the non-official list delivered by the President of the National Correctional Council lists 152 inmates before the riot.


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2.3.F Caballero Delgado and Santana v. Colombia In 1995 the Court also ruled on the merits in the case Caballero Delgado and Santana v. Colombia,88 concerning the disappearance of Isidro Caballero Delgado and María del Carmen Santana, which took place on 7 February 1989 at San Alberto del César. On that date a military patrol of approximately five members together with a few civilians captured Mr. Caballero Delgado, a prominent exponent of the local Teachers’ Trade Union, and Mrs. Santana, who was his assistant and also a member of the leftist movement known as M-19. Their fate and whereabouts remain unknown. Once informed about the disappearance of the two persons, their relatives actively searched for them. All military authorities denied their apprehension and no judicial remedy proved to be effective. The relatives of the two disappeared persons were themselves victims of reprisals and threats. A repentant soldier declared that the two who had disappeared had been tortured and extra-judiciary executed and that he could provide relevant information on the place where the mortal remains had been buried after being chopped up. No Colombian judicial authority intervened and no exhumation attempt was made until 1995. However, the mortal remains of Mr. Caballero Delgado and Mrs. Santana were not identified. In its judgment the Court considered that there was enough evidence to presume the death of the two victims and accordingly found a violation of Article 4.1 (right to life) in conjunction with Article 1.1 (obligation to respect rights) of the American Convention. However, the Court was not persuaded that the two people who had disappeared had also been victims of a violation of Article 5 (right to humane treatment). No allegation of a possible violation of this provision with respect to the relatives of the disappeared was made. The Court also declared a violation of Article 7 (right to personal liberty) and dismissed all allegations concerning Articles 2.1 (domestic legal effects), 8.1 (right to a fair trial) and 25 (right to judicial protection). In 1997 the Court rendered the judgment on reparations, ordering Colombia to pay pecuniary compensation and to locate, identify and deliver the mortal remains of the victims to their relatives. The Commission had also requested the Court to order, as measures of non-pecuniary reparation, the

88

IACHR, Case Caballero Delgado and Santana v. Colombia, judgment of 21 January 1994, Ser. C No. 17 (Preliminary Objections); judgment of 8 December 1995, Ser. C No. 22 (Merits); and judgment of 29 January 1997, Ser. C No. 31 (Reparations).

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redraft of Colombian legislation on the remedy of habeas corpus, the codification of the offence of enforced disappearance of persons and that the judicial proceedings on the disappearance of Isidro Caballero-Delgado and María del Carmen Santana should remain within the jurisdiction of the ordinary courts and not be transferred to the military courts. The Court declared all these claims inadmissible.89 2.3.G

Garrido and Baigorria v. Argentina

During the public hearing on the case Garrido and Baigorria v. Argentina90 for the first time a respondent State admitted its international responsibility for human rights violations in a case of enforced disappearance. Mr. Garrido and Mr. Baigorria were arrested on 28 April 1990 by men wearing the uniforms of the police of the city of Mendoza. For five years after their disappearance, their relatives denounced the facts at a local level as well as at the national and international level without obtaining any significant result. When the case finally got to the Court, Argentina, which before the Interamerican Commission had denied any involvement, declared that it totally accepted its international responsibility. The Commission expressed its agreement to the terms of such acceptance.91 In the decision of 2 February 1996 the Court, took note of the recognition of responsibility and gave six months to the parties to reach an agreement on the sum to be paid as pecuniary compensation. It specified that it remained seized of the matter and that, if agreement could not be reached or could not be approved by the Court, the question of compensation would be settled by a judgment on reparations. This was done on 27 August 1998, when the Court ordered Argentina to pay compensation for pecuniary and non-pecuniary damages, adding that: Argentine State shall investigate the facts leading to the disappearance of Adolfo Garrido and Raúl Baigorria and prosecute and punish their authors, accomplices, accessories after the fact and all those who may have had some part in these events.92

89

90

91 92

On the issue, Judge A.A. Cançado Trindade attached to the judgment a dissenting opinion. IACHR, Case Garrido and Baigorria v. Argentina, judgment of 2 February 1996, Ser. C No. 26 (Merits); and judgment of 27 August 1998, Ser. C No. 39 (Reparations). IACHR, Case Garrido and Baigorria (Merits; supra note 90), para. 25. IACHR, Case Garrido and Baigorria (Reparations; supra note 90), para. 74.


2.3.H

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Castillo Páez v. Peru

On 3 November 1997, the Court delivered a judgment on the case Castillo Páez v. Peru.93 Ernesto Rafael Castillo Páez, a student at the Faculty of Sociology, disappeared in Lima on 21 December 1990. According to witnesses, Mr. Castillo Páez was walking when he was halted by two policemen who insulted and apprehended him, forcing him into the boot of their patrol car. That was the last time Mr. Castillo Páez was seen alive. His fate and whereabouts remain unknown. His relatives tried to locate him and reported his disappearance to various authorities. No impartial, effective and thorough investigation was ever carried out. When the case reached the Court, seven years after the facts had occurred, no one had ever been formally charged with an offence. In the meantime, Peru had adopted two amnesty laws94 which materially impeded the prosecution of any person accused of human rights violations within the context of the “war on terrorists” in the Nineties, leading to impunity for serious human rights violations. In 1991 the lawyer representing the Castillo Páez family was the victim of an attack that left him severely injured.95 As subsequently explained by an expert at the public hearings in Court, from 1989 onwards the terrorist group Sendero Luminoso (Shining Path) concentrated its criminal activities in the city of Lima. This led the armed forces to act with a suspicion towards those who fitted the “standardterrorist” identikit: young men, students, peasants, in particular those of Andean origin. They became the targets of indiscriminate repression as they were deemed to be possible subversive elements or supporters of terrorist groups. In this general context, enforced disappearances were considered to be the perfect means for fighting terrorism. Once the Castillo Páez case arrived at the Court, Peru denied any violation of the right to life (Art. 4 of the American Convention) with regard to the student. It argued that the Court could not presume his death, as:

93

94

95

IACHR, Case Castillo Páez v. Peru, judgment of 3 November 1997, Ser. C No. 34 (Merits); and judgment of 27 November 1998, Ser. C No. 43 (Reparations). Ley de Amnistía No. 26479 of 14 June 1995 and No. 26492 of 28 June 1995. See infra 4.8. Opening a letter bomb addressed to him, he lost his left arm and his eardrums were permanently damaged.

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A disappearance does not necessarily imply the victim’s death and that the possible author of the detention could not be punished for the crime of murder, “since the body in the crime is missing, a condition unanimously required by contemporary criminal doctrine.”96

The Court promptly understood the far-reaching consequences that such an astonishing interpretation of Article 4 would entail and firmly rejected it: The State’s argument that the fact that there is no knowledge of a person’s whereabouts does not mean that he has been deprived of his life, since “the body in the crime . . . would be missing,” which it claims to be a requirement of contemporary criminal doctrine, is inadmissible. This reasoning is unsound since it would suffice for the perpetrators of a forced disappearance to hide or destroy a victim’s body, which is frequent in such cases, for there to be total impunity for the criminals, who in these situations attempt to erase all traces of the disappearance.97

The Court found violations of Articles 4, 7 (right to personal liberty) and 25 (right to judicial protection), all in conjunction with Article 1.1 (obligation to respect rights) of the American Convention. The Court also found a violation of Article 5 (right to humane treatment) with regard to the material victim, as the psychological condition of extreme fear Mr. Castillo Páez was presumably exposed to after his illegal apprehension amounted to torture. But the Court did not find any autonomous violation of Article 5 with respect to the relatives of the material victim. Their suffering was considered as relevant only for the determination of the amount of compensation for moral damage. Nor did the Court find any violation of Article 8 (right to fair trial) with regard to the material victim or his relatives. Pronouncing on the specific question of the availability of a lawyer for the appropriate defence of the interests and rights of the victim, the Court concluded that, even though the attack suffered by the lawyer chosen by the relatives of Mr. Castillo Páez prevented him from continuing to actively work on the case, they could nevertheless concretely count on other lawyers and did not suffer any direct violation. In the Castillo Páez case, the Interamerican Commission made the first attempt to allege also a violation of the right to truth,98 without linking

96 97 98

IACHR, Case Castillo Páez (Merits; supra note 93) para. 70. Ibid., para. 73. On the right to truth, see infra 4.11.


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it to any specific provision of the American Convention and generically stating that “the right to truth has been recognized by several international organizations”. The Court concluded that such a claim: [. . .] refers to the formulation of a right that does not exist in the American Convention, although it may correspond to a concept that is being developed in doctrine and case law, which has already been disposed of in this Case through the Court’s decision to establish Peru’s obligation to investigate the events that produced the violations of the American Convention.99

In its judgment on reparations, issued on 27 November 1998, the Court awarded pecuniary compensation for both the material and the moral damages suffered by the material victim and his relatives. It reiterated the obligation of Peru, as already established in the judgement on the merits, to investigate the case and to judge and sanction those found to be responsible, qualifying this as a form of reparation. In this regard, the Commission and the representatives of the relatives of the victim argued that, for as long as amnesty laws were in force in Peru, such an obligation would be systematically frustrated. Accordingly, they requested the Court to also declare, as a form of reparation, the incompatibility of the legislation in question with the Interamerican system of protection of human rights. While insisting on the obligation to investigate, judge and sanction, the Court did not explicitly state that Peru was bound to repeal its amnesty legislation.100 Judges Cançado Trindade and Abreu Burelli elaborated on this issue in their concurring opinion: [. . .] Contemporary doctrine on the matter of reparations for violations of human rights has established the relationship between the right to reparation, the right to truth and the right to justice (which starts with the access to justice), – rights the realization of which is hindered by measures of domestic law (such as the so-called self-proclaimed amnesties pertaining to violations of human rights) which lead to a situation of impunity. That doctrinal evolution allows us to sustain that such measures are incompatible with the duty of States to investigate those violations, rendering impossible the vindication of the rights to truth and to the realization of justice, as

99 100

IACHR, Case Castillo Páez (Merits; supra note 93), para. 86. In a subsequent memorable judgement the IACHR ordered Peru to declare null and void the two amnesty laws: IACHR, Case Barrios Altos (Chumbipuma Aguirre and others) v. Peru, judgment of 14 March 2001, Ser. C No. 75 (Merits); and judgment of 3 September 2001, Ser. C No. 83 (Interpretation).

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well as, consequently, of the right to obtain reparation. One cannot thereby deny the close link between the persistence of impunity and the hindering of the very duties of investigation and of reparation, as well as of the guarantee of non-repetition of the harmful facts.101

Finally, the Court noted with “satisfaction” that in 1998 Peru had included in its criminal code the autonomous offence of enforced disappearance. However, the Court did not evaluate the compatibility of this new provision with international standards on the issue of enforced disappearance.102 2.3.I

Blake v. Guatemala

An important step forward in Interamerican jurisprudence on enforced disappearances was made on 24 January 1998 when the judgment on the Blake v. Guatemala103 case set a fundamental precedent regarding the temporal element of the offence, stating the continuous character of the violation.104 In 1985 Nicholas Chapman Blake, an American journalist, and Griffith Davis, an American photographer, went to Guatemala to report on the internal armed conflict there. In April of the same year the American embassy in Guatemala contacted the families of the two men, telling them that they had disappeared and suggesting that the guerrillas might have captured them. The investigations did not achieve any appreciable results and were obstructed by the contradictory information provided by the authorities. Witnesses affirmed that those responsible for the disappearance were some members of a “Patrulla Civil ” (a paramilitary group) who, after abducting the two men, had brutally killed them and burnt their remains to eliminate any evidence. From the information collected by the Court it turned out that already in 1988 the Guatemalan government had had sufficient elements to identify both the victims and the authors of the offence. But the government did not help the relatives of the disappeared who had to act on their own in their attempts to recover at least the mortal remains of the victims and were even asked for money by local authorities in order to obtain information.

101

102

103

104

IACHR, Case Castillo Páez (Reparations; supra note 93), reasoned vote of Judges A.A. Cançado Trindade and A. Abreu Burelli, paras. 1 and 2. The IACHR did so in a subsequent case relating to Peru, decided in 2005: IACHR, Case Gómez Palomino v. Peru (infra 2.3.S). IACHR, Case Blake v. Guatemala, judgment of 26 June 1996, Ser. C No. 27 (Preliminary Objections); judgment of 24 January 1998, Ser. C No. 36 (Merits); and judgment of 22 January 1999, Ser. C No. 48 (Reparations). See infra 4.6.


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When presenting the case to the Court the Commission alleged the violation of Articles 4 (right to life), 7 (right to personal liberty), 8 (right to a fair trial), 13 (freedom of thought and expression), 22 (freedom of movement and residence) and 25 (right to judicial protection) of the American Convention, all in conjunction with Article 1.1 (obligation to respect rights). As a preliminary objection, Guatemala argued that the Court lacked the competence ratione temporis. While it had recognized the competence of the Court on 9 March 1987, the facts of the case had occurred in 1985. In the judgment of 2 July 1996 on the preliminary objections, the Court declared it was competent only for the violations of human rights perpetrated after 9 March 1987. In the judgment on the merits the Court recalled the continuing nature of the offence of enforced disappearance. If the Court ratione temporis could not deal with the abduction of Mr. Blake, which took place in 1985, it could however consider the effects of these acts which were still ongoing after the date of acceptance by Guatemala of the competence of the Court. Seven years after Mr. Blake’s disappearance his family was still lacking information about his fate and they did not have any mortal remains to bury. The Court considered Mr. Nicholas Blake’s disappearance as marking the beginning of a continuing situation, and will decide about the actions and effects subsequent to the date on which Guatemala accepted the competence of the Court.105

In reaching this conclusion, the Court referred to the definition of enforced disappearance given by the 1994 Interamerican Convention, which in the meantime had entered in force, to Article 17.1 of the 1992 Declaration106 and to Article 201-ter of the Guatemalan Criminal Code, as modified in 1996.107 All these instruments qualify enforced disappearance as a continuing 105 106 107

IACHR, Case Blake (Merits; supra note 103), para. 67. On these two instruments, see infra 3.1 and 3.2. On 22 May 1996, the Congress of Guatemala approved Decree No. 33–96, by which it reformed the Criminal Code. Article 201-ter codifies the offence of enforced disappearance, referring to the definition proposed in the 1994 Interamerican Convention. The offence is qualified as continuing (in the sense that it continues until the victim is freed or his fate and whereabouts are established with certainty and, in the case the disappeared person has died, until when his remains are located). The sanction for the crime of enforced disappearances is from 25 to 40 years of imprisonment. The death penalty is imposed on those who caused severe injuries, permanent psychological damage or death to the victim. Incidentally, the imposition of the death penalty does not comply with Article 4.2 of the American Convention which prohibits the reintroduction of this

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offence, whose effects last until the victim is freed or his fate and whereabouts are established. Judge Cançado Trindade attached to the judgment a concurring opinion concerning the issue of ratione temporis limitations and their applicability to the case. He inferred that, with due regard to the peculiarities of enforced disappearances and with the view not to further damage the victims of gross human rights violations, what was more important than the date of acceptance of the competence of the Court was consideration of the “the nature of the alleged multiple and interrelated violations of protected human rights, and prolonged in time, with which the present case of disappearance is concerned”.108 In his opinion this would be a positive step in the direction of a “humanization of the law of treaties (a process already initiated with the emergence of the concept of jus cogens), as this chapter of international law still persists strongly impregnated with State voluntarism and an undue weight attributed to the forms and manifestations of consent”.109 A clear distinction had to be made between the date when Guatemala accepted the competence of the Court (9 March 1987) and the date when it ratified the American Convention (25 May 1978). When it ratified the latter, Guatemala committed itself to respect all the recognized rights and fundamental liberties, while in 1987 it only chose a particular kind of judicial control. Judge Cançado Trindade further recalled European case law, according to which the continuity of an offence amounting to a human rights violation should be considered as an aggravating circumstance. The Court found that Articles 5.1 (with regard to Mr. Blake) and 8.1 (with regard Mr. Blake’s relatives) of the American Convention had been violated in conjunction with Article 1.1. Further, although the Commission had not invoked a violation of Article 5 with regard to the relatives of the material victim, the Court, applying the iura novit curia principle, considered it appropriate to analyze the facts also from this perspective. For the first time in the Interamerican system the Court found that Article 5 had been

108

109

penalty by States Parties which had already abolished it (as is the case of Guatemala). Already in 1983 the Court delivered an advisory opinion on the issue of the extension of the death penalty to offences to which it was not applied in 1969, considering this practice incompatible with the American Convention (Advisory Opinion, Ser. A No. 3, Restrictions to Death Penalty, 8 September 1983). IACHR, Case Blake (Merits; supra note 103), concurring opinion of Judge A.A. Cançado Trindade, para. 3. Ibid.


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violated not only with regard to Mr. Blake but also with regard to his relatives, considering the stress, the suffering and the sensation of insecurity and frustration. The investigations, which had lasted seven years, had caused the younger brother of the victim to suffer severe depression followed by long and expensive psychological treatment. The complete lack of respect shown towards the dead people by burning their bodies could only have worsened the situation. Accordingly, the Court concluded that: The violation of those relatives’ mental and moral integrity is a direct consequence of his forced disappearance. The circumstances of such disappearances generate suffering and anguish, in addition to a sense of insecurity, frustration and impotence in the face of the public authorities’ failure to investigate. Moreover, the burning of Mr. Nicholas Blake’s mortal remains to destroy all traces that could reveal his whereabouts is an assault on the cultural values prevailing in Guatemalan society, which are handed down from generation to generation, with regard to respecting the dead. The burning of the victim’s remains by members of the civil patrol on the orders of a member of the Guatemalan army increased the suffering of Mr. Nicholas Blake’s relatives. Consequently, the Court considers that such suffering, to the detriment of the mental and moral integrity of Mr. Nicholas Blake’s relatives, constitutes a violation by the State of Article 5 of the Convention in relation to its Article 1(1).110

2.3.J

Benavides Cevallos v. Ecuador

In the case Benavides Cevallos v. Ecuador, decided on 19 June 1998,111 the victim was arrested in 1985. She was illegally detained, tortured and finally killed by State agents. Notwithstanding several attempts to conceal it, the relatives were able to find the body of the victim, also availing themselves of the help of the National Commission of Investigation. But no domestic court had tried or sanctioned any of the alleged authors of the offence. When the case finally reached the Court, Ecuador admitted its international responsibility and undertook to carry out impartial investigations, to bring the proceedings still pending before domestic courts to a conclusion and to pay adequate compensation. Besides awarding monetary compensation for the material damage suffered by the victim and the relatives, the Court, accepting the request by the parents of the victim, ordered Ecuador to commemorate the name of Consuelo

110 111

IACHR, Case Blake (Merits; supra note 103), paras. 114–116. IACHR, Case Benavides Cevallos v. Ecuador, judgment of 19 June 1998, Ser. C No. 38.

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Benavides Cevallos by giving it to streets, schools and public buildings. This measure, which has a high moral value, shows how the Court is eager to resort to various forms of reparation.112 It aims to prevent general oblivion, one of the worst effects of enforced disappearance, by reminding society of the names of those who were lost. It also indirectly aims to remind everybody of the level of degradation reached by the States responsible for such acts. 2.3.K

El Caracazo v. Venezuela

The case of El Caracazo v. Venezuela, decided on 19 November 1999,113 is notable for its collective character. The facts occurred in February and March 1989 in Caracas, during demonstrations against the increase in prices for public transportation and the application of severe financial measures in accordance with requirements by the International Monetary Found. The situation got out of control. Because of the police strike, the army intervened to put down the riots. Nine thousand soldiers were sent to Caracas. Most of them were 17 or 18 years old, had been recruited only a few days earlier and were untrained to deal with such a delicate situation. On 28 February an Extraordinary Decree suspended the right to personal liberty, the prohibition of interference with private life, correspondence and home, freedom of movement, freedom of expression, right of assembly and peaceful demonstration. Those fundamental guarantees were re-established only one month later. During that month the military operation caused the deaths of over two hundred people, with several injured and more than thirty-five cases of enforced disappearance. Common graves were subsequently found. All judicial proceedings at the domestic level were obstructed. Nine years after the facts none of the requests filed for the exhumation of the bodies found

112

113

See IACHR, Case Loayza Tamayo v. Peru, judgment of 27 November 1998, Ser. C No. 42 (Reparations), concurring opinion of Judges A.A. Cançado Trindade and A. Abreu Burelli; Case Gómez Palomino (infra 2.3.S), concurring opinion of Judge A.A. Cançado Trindade, paras. 5–13; United Nations Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, recommended on 21 April 2005 by the United Nations Commission on Human Rights (Resolution 2005/81), principles 31–34; United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted on 16 December 2005 by the United Nations General Assembly (Resolution 60/147). IACHR, Case El Caracazo v. Venezuela, judgment of 11 November 1999 Ser. C No. 58 (Merits); and judgment of 26 November 2002, Ser. C No. 95 (Reparations).


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in the common graves had been accepted and carried out. Two attempts by unknown people to burn the common graves were recorded. When the case reached the Court, Venezuela publicly admitted its international responsibility. Accordingly the Court, besides the payment of pecuniary compensation, ordered to Venezuela to take a series of measures, namely: to carry out an effective investigation of the facts, to identify those responsible for them, as well as the abettors and possible accessories after the facts, and to punish them administratively and criminally, as appropriate; to make publicly known the results of the domestic investigations so that Venezuelan society may know the truth; to ensure that the proceedings directed at the investigation and punishment of those responsible for the facts had the desired effects and, specifically, not to resort to amnesty, extinguishment and measures designed to eliminate responsibility; to adopt the necessary legislative amendments to fulfil the mentioned duties; to locate, exhume and identify by means of undoubtedly suitable techniques and instruments the remains of the victims; to cover the costs of the burial, in the place chosen by the relatives of the victims; to adopt all necessary provisions for the education and training of all members of armed forces and security agencies on principles and rules on human rights protection and the limits to which the use of weapons by law enforcement officials is subject, even in a state of emergency; to adjust operational plans regarding public disturbances to the requirements of respect and protection of human rights, adopting to this end, among other measures, those geared toward control of actions by all members of the security forces to avoid excess. This set of measures of reparations takes into account the complexity of the offence of enforced disappearance as well as the need to put in place measures to prevent it. 2.3.L

Durand and Ugarte v. Peru

In 2000 the Court rendered the judgment on the merits in the case Durand and Ugarte v. Peru,114 relating to the disappearance of Gabriel Pablo Ugarte Rivera and Nolberto Durand Ugarte, which took place on 18 June 1986 in the same circumstances as the Neira Alegría and others case.115 114

115

IACHR, Case Durand and Ugarte v. Peru, judgment of 28 May 1999, Ser. C No. 50 (Preliminary Objections); judgment of 16 August 2000, Ser. C No. 68 (Merits); and judgment of 3 December 2001, Ser. C No. 89 (Reparations). See supra 2.3.E.

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Also in this case the Court declared a violation of Articles 4.1 (right to life) and 7 (right to personal liberty) in conjunction with Article 1.1 (obligation to respect rights) of the American Convention. All other allegations put forward by the Commission were rejected. Article 5 (right to humane treatment) was not considered as violated either with respect to the material victims or with respect to their relatives. The Court ordered Peru to pay pecuniary compensation and to locate, identify and return the mortal remains of the victims to their relatives. In 2001, in the judgment on reparations, the Court positively evaluated and endorsed an agreement between the relatives of the victims and the government of Peru that established also programmes of “Health Benefits” and “Services for psychological support and interpersonal growth and development” in favour of the relatives of the victims. The Court also ordered Peru to publish the judgment on the merits in the Official Gazette El Peruano, to circulate its contents via such other media as deemed appropriate for that purpose and to issue a public apology to the victims for the grievous injuries caused. The State was further ordered to investigate and punish those responsible for the events, to publish and circulate a decree reproducing the agreement on reparation between the relatives of the victims and the government and to undertake all appropriate measures of non repetition. When the decision was rendered, Article 320 of the 1998 Peruvian criminal code already codified the offence of enforced disappearance. However, the Court did not analyze the compatibility of this provision with international legal standards on the issue, nor did the Commission request it to do so.116 2.3.M

Trujillo Oroza v. Bolivia

In the Trujillo Oroza v. Bolivia case, decided on 26 January 2000,117 the practice of recognition of responsibility by the respondent State received public appreciation by the Court and brought some significant consequences in the formulation of ratione temporis limitations to the competence of the Court. 116

117

The Court will do so in a subsequent judgment: IACHR, Case Gómez Palomino (infra 2.3.S). IACHR, Case Trujillo Oroza v. Bolivia, judgment of 26 January 2000, Ser. C No. 64 (Merits); and judgment of 27 February 2002, Ser. C No. 92 (Reparations).


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In 1972 José Carlos Trujillo Oroza, a 21-year old student, was arrested without warrant or validation by a judicial authority. He was taken to the El Pari prison, where his mother could visit him during the first days of his detention, noting that he showed signs of torture. But one day his mother was no longer allowed to visit him. The authorities she asked to clarify the whereabouts of her son responded that they were unable to locate him or his place of detention. All her reports were ignored. When she located a corpse that could possibly belong to her son, all attempts to obtain an order of exhumation met with no response from the authorities. The attitude shown by Bolivia before the Commission was contradictory. In the first stages it declared it was completely unrelated to the case; then it invoked the application of the statute of limitations; finally it alleged that it would have been too complicated and expensive to find the mortal remains of the victim. But Bolivia fully admitted its international responsibility before the Court. The Court defined this attitude as “a positive contribution to this proceeding and to the exercise of the principles that inspire the American Convention on Human Rights”.118 On 22 February 2002 the Court rendered its judgment on the reparations, highlighting that pecuniary redress is not enough in cases of enforced disappearance. It recognized that the complexity of the offence entailed several violations, which offended different kinds of victims (material victim, relatives and society in general), which deserved to be met by correspondingly articulated forms of reparation. The first obligation imposed on Bolivia was to search for the mortal remains of the victim, exhume them and give them back to the family to allow a proper burial. As the Bolivian Criminal Code did not include the offence of enforced disappearance, the Court ordered the State to introduce an autonomous provision in accordance with the definition of the offence, as contained in the 1994 Interamerican Convention. The Court found that the failure to codify an autonomous offence of enforced disappearance represented a violation of the obligations of Bolivia under Article 2.2 (domestic legal effects) of the American Convention, as well as of the 1994 Interamerican Convention. Accordingly, the Court concluded that: It is also important to place on record that the failure to define the forced disappearance of persons as an offence has prevented the criminal prosecution

118

IACHR, Case Trujillo Oroza (Merits; supra note 117), para. 42.

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in Bolivia to investigate and punish the crimes committed against José Carlos Trujillo Oroza from being carried out effectively, and allowed impunity to continue in this case.119

The Court ordered to Bolivia to publish some abstracts of the judgment in a national newspaper and in the official bulletin. The State was also ordered to proceed to assign the name of “José Carlos Trujillo Oroza” to an educational establishment in Santa Cruz, at a public ceremony and in the presence of the relatives of the victim. In the attempt to adopt measures which could restore the honour and the dignity of the victim and have a strong impact on civil society as a whole, the Court also ruled that 2 February (the date of José Carlos Trujillo Oroza’s disappearance) had to be declared the national day of enforced disappearance detainees. Finally, material and moral damages were awarded, as a consequence of the finding of a violation by Bolivia of Article 5 (right to humane treatment) towards both the material victim and his relatives. In the Trujillo Oroza case the material victim had disappeared in 1972, while Bolivia had accepted the adjudicatory jurisdiction of the Court only in 1993 and the decision was rendered in 2000. Many years had passed during which, without interruption, the victim had remained in the condition of disappeared person. In the Blake v. Guatemala case the Court denied that it was competent to consider facts that took place between 1985 (the year of the victim’s disappearance) and 1987 (the year Guatemala accepted the jurisdiction of the Court).120 But in the Trujillo Oroza case Bolivia, when publicly admitting its international responsibility for the violation of human rights, did so from 1972. This enabled the Court to render a judgment about an illegal deprivation of liberty which had started several years before it could exercise its competence about the presumable death of the victim and to declare a violation of Article 4 of the American Convention (right to life). This approach also influenced the determination of the pecuniary compensation to be paid to the relatives: all the sums to be awarded as resulting damage, lost profit and corresponding rates of interests, were calculated from 1972 and not from 1993.

119 120

IACHR, Case Trujillo Oroza, (Reparations; supra note 117), para. 97. See supra 2.3.I.


2.3.N

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Bámaca Velásquez v. Guatemala

The judgment rendered on 2000 by the Interamerican Court on the case Bámaca Velásquez v. Guatemala121 led to significant progress in the jurisprudential approach towards the issue of enforced disappearance. The Interamerican Commission alleged the violation of Articles 4 (right to life), 5 (right to humane treatment), 7 (right to personal liberty), 8 (right to a fair trial), 25 (right to judicial protection), all of them in conjunction with Article 1.1 (obligation to respect rights) of the American Convention. Furthermore, it alleged the violation of Articles 3 (right to juridical personality) and 13 (freedom of thought and expression) and Article 3 common to the Four Geneva Conventions of 1949 (about which the Court did not consider itself to be competent) and of Articles I, II and VI of the 1994 Interamerican Convention (which the Court examined and considered to have been violated). The Commission also raised a further question: the violation of the right to truth, which was alleged although no provision of the American Convention expressly recognizes it. The declared goal was to obtain a dynamic development of the case law of the Court. Mr. Bámaca Velásquez was the leader of the group known as Luis Ixmatá of the revolutionary organization Organización Revolucionaria del Pueblo en Armas. On 12 March 1992, during a gunfight between the army and the guerrillas, he disappeared. All the witnesses agreed that he did not die during the clash, but he was abducted, still alive, by some soldiers. According to the petition filed by the Commission, he was subjected to sessions of torture where he was artificially kept alive by doctors to obtain information from him and, finally, he was killed. His wife, an American national, began a pressing campaign to obtain at least his mortal remains. She alerted public opinion, constantly denounced the facts to the relevant domestic authorities and to the United States embassy in Guatemala and twice went on hunger strike. It was all in vain due to obstinate obstruction by governmental authorities. Both she and her lawyer were continuously harassed and they were victims of several reprisals. Indeed the first lawyer to deal with the case was forced to leave the country with his family to save their lives. The lawyer who replaced him was killed in 1998. When the wife of the victim, after the research carried out on her own, finally located a place where the mortal

121

IACHR, Case Bámaca Velásquez v. Guatemala, judgment of 25 November 2000, Ser. C No. 70 (Merits); judgment of 22 February 2002, Ser. C No. 91 (Reparations).

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remains of Mr. Bámaca Velásquez were likely to be found, she had to pay public officials in order to obtain the permit to carry out the exhumation. Once the official permit had been obtained and a team of experts reached the place, all of a sudden over twenty armed soldiers surrounded the site, threatening the experts and forcing them to give up carrying out their duty. At the second attempt it was the General Procurator of the Republic who reached the site by helicopter and prohibited the exhumation by advancing bureaucratic pretexts. According to the information collected both by the Commission and the Court, during the years between 1992 and 1996 the judiciary system in Guatemala suffered a degeneration which determined the impunity of 99.9% of cases of human rights violations. The Court found these data reliable and admitted the evidence according to which, during those years, the anti-subversive technique implemented by the army consisted of abducting the leaders of revolutionary groups, taking them to unofficial places of detention and subjecting them to prolonged tortures to get as much information as possible. Their death was artificially postponed both in the view of obtaining more information and of provoking worse sufferings. Often their relatives were captured as well, especially women and children. They were then tortured in front of the victim in order to exert psychological pressure. In the Bámaca Velásquez case the attitude assumed by the government and its obstructionism were also due to the fact that the Guatemalan Legislative Assembly was drafting an amnesty law which was going to enter into force a few months later and which would have granted impunity to the authors of the crime. The Court considered that eight years and eight months had passed since the disappearance of the victim without the possibility of obtaining any information about his fate and whereabouts. Moreover, during those years in Guatemala enforced disappearance followed by the extra-judiciary execution of the victim was a systematic practice. Accordingly, the Court declared that the death of Mr. Bámaca Velásquez could be presumed. Consequently, it held Guatemala responsible for the violation of Article 4 of the American Convention. As regards the violation of Articles 5 and 7, the Court gave the widest interpretation possible. The provisions were considered as violated not only as regards Mr. Bámaca Velásquez but also, as requested by the Commission, as regards his wife and relatives. Also the relatives of the victim had been harmed in their personal integrity: the stress and frustration caused to them


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by the disappearance of their loved one and the lack of any information by the public authority could be regarded as degrading and inhuman treatment and amounted to autonomous violations. To support this reasoning the Court quoted both its own precedents122 and the ones of the European Court of Human Rights123 which in the meantime, after examining one of the cases of enforced disappearance concerning Turkey, had declared the violation of Article 3 (prohibition of torture) of the European Convention on Human Rights also for the mother of the victim. In the Bámaca Velásquez case the Interamerican Court specified the criteria to be applied: The closeness of the family relationship, the particular circumstances of the relationship with the victim, the degree to which the family member was a witness of the events related to the disappearance, the way in which the family member was involved in attempts to obtain information about the disappearance of the victim and the State’s response to the steps undertaken.124

As to the invoked violation of Article 3 of the American Convention, the Commission itself had qualified it as an attempt to enlarge the range of the protection of the victim. The Court rejected this argument, concluding that there was no violation of the provision, as the 1994 Interamerican Convention did not consider this aspect. Naturally, the arbitrary deprivation of life suppresses the human being and, consequently, in these circumstances, it is not in order to invoke an alleged violation of the right to juridical personality or other rights embodied in the American Convention.125

The Court also found that Guatemala had violated Articles 8 and 25 in conjunction with Article 1.1 of the American Convention. As to the violation of the right to truth, the Commission articulated it on three different levels: against the material victim, against his relatives and against society as a whole.126 The right itself was presented as the natural evolution of the interpretation of Articles 1.1, 8, 25 and 13 of the American Convention. The Court, basing itself on the possibility of tying the violation

122

123 124 125 126

IACHR, Case Villagrán Morales and others v. Guatemala, judgment of 19 November 1999 (Merits), Ser C No. 63. ECHR, Case Timurtas (infra 2.4.C). IACHR, Case Bámaca Velásquez (Merits; supra note 121), para. 163. Ibid., para. 180. Ibid., para. 197.

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of the right to truth with already existing and expressly recognized rights (namely Articles 8 and 25 of the American Convention), did not consider it necessary to declare an autonomous violation of this right.127 Judge Cançado Trindade, in his joint concurrent opinion, focused on the final moment of an enforced disappearance, when the mortal remains of the victim are violated and desecrated as well. In his view, in the Bámaca Velásquez case such behaviour constituted a particular offence to the Mayan culture and tradition to which the victim belonged and in which the cult of the dead has a fundamental meaning and importance. What was done to the remains of the victim (and it is likely that it was also done to the thousands of other Guatemalan disappeared people) demonstrates the “appalling spiritual poverty of the dehumanised world in which we live”.128 According to Judge Cançado Trindade, the right to a burial which has been an essential element since the most ancient cultures and its violation, codified and sanctioned under several national criminal codes, is not addressed by international human rights law.129 Even though the Commission and the Court had not noted this aspect, he expressly recalled that Article 11 of the American Convention recognizes the right to the protection of honour and dignity and could be used to cover the existing gap of protection for human remains. On 22 February 2002 the Interamerican Court rendered its judgment on the reparations, which brought about a further evolution in the jurisprudence concerning the phenomenon of enforced disappearances. While it is impossible to give life back to the material victim of the offence, further reparatory measures could be adopted, in the view of re-establishing the honour of the victim and of immortalizing his memory for the benefit of his relatives and of society as a whole. The Court accordingly ordered Guatemala not only to pay pecuniary compensation, but also to publish the judgment in the most

127 128

129

On the right to truth see infra 4.11. IACHR, Case Bámaca Velásquez (Merits; supra note 121), concurring opinion of Judge A.A. Cançado Trindade, para. 5. Some references to the right to a proper burial and respect for the human remains may be found in international humanitarian law: Article 17 of the First Geneva Convention (1949), Article 20 of the Second Geneva Convention (1949), Articles 120 and 121 of the Third Geneva Convention (1949), Article 34 of the First Additional Protocol to the Geneva Conventions (1977) and Article 8 of the Second Additional Protocol to the Geneva Conventions (1977). See infra 4.12.


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important national newspapers and to broadcast it on the radio and television. The Court ordered that impartial and effective investigations about the case had to be carried out and that criminal proceedings leading to sanctioning those responsible were to be held promptly. The Court also decided that Guatemalan domestic legislation had to be harmonized with the provisions of the 1994 Interamerican Convention, complying with the existing obligation, under Article 2 of the American Convention, to adopt such legislative or other measures as may be necessary to give effect to rights and freedoms which are not already ensured by domestic legislative provisions. It was further ordered to the State to establish the whereabouts of the mortal remains of the victim, exhume them and give them back to the relatives. By this means respect to the dead and to their remains was substantially ensured and proper burial was recognized as a human right. As remarked in the concurring opinion of Judge Cançado Trindade, according to Mayan culture, to which the material victim of this case belonged: The cultural cycle formed by life and death is closed with the burial rites, which provide a “convivencia” of the living with the dead and an “encounter” between generations. These “encounters” of the living with their dead have a whole pedagogy, which preserves an “integrated culture”, and renders it possible that “values of an ethical and moral kind” be assimilated by the sons and grandsons, who benefit themselves from all the accumulated experience. Thus, one is not only before an encounter of the dead with his own ancestors, but also before the projection of this encounter into the persons of the living, of the new generations.130 Human dignity finds expression also in the respect for the mortal remains of those who have already crossed the extreme limit of life. The indifference as to human destiny (and all the symbolism which surrounds this latter) is a way of violating the right to dignity.131

2.3.O

Molina Theissen v. Guatemala

On 4 May 2004 the Court delivered a judgment regarding a child abducted from his house in 1981 (Molina Theissen v. Guatemala).132 The case shows how enforced disappearance can tragically affect a family as a whole. At the

130

131 132

IACHR, Case Bámaca Velásquez (Reparations; supra note 121), concurring opinion of Judge A.A. Cançado Trindade, para. 9. Ibid., para. 13. IACHR, Case Molina Theissen v. Guatemala, judgment of 4 May 2004, Ser. C No. 106 (Merits); judgment of 3 July 2004, Ser. C No. 108 (Reparations).

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time of his disappearance Marco Antonio Molina Theissen was 14 years old. His fate and whereabouts remain unknown. The relatives of Marco Antonio attended San Carlos University, carrying out administrative, academic and political activities. For this reason, within the general context of the internal armed conflict, they were considered to be “subversive” by Guatemalan security forces. The father of the victim, a political opponent of the military regime instituted in 1954, had been arrested, ill treated and expelled from Guatemala on several occasions between 1955 and 1960. The uncle had disappeared in 1966. The sisters of the victim were actively involved in trade unionist activities and were all members or backers of the Partido Guatemalteco del Trabajo (Guatemalan Workers Party). One of the sisters, Emma Guadalupe, was the partner of the leader of the FRENTE Party, a student left wing association. When she was 15 years old she was arrested with the generic charge of “subversion”. Before being brought before a judge she was kept incommunicado for several days, ill treated and repeatedly raped by the police officers who had her in custody. One year later her partner was abducted by police officers and was found dead a few hours later with evidence of torture. A few days after that event she was arrested again, without a mandate, by members of the army who held her for nine days at a camp in Quetzaltenango. During that time she was kept blindfolded, without food and water and she was repeatedly tortured and raped by several soldiers. She finally had the opportunity to escape and clandestinely reached Mexico, where she obtained refugee status. The day after her flight, on 6 October 1981, two armed men entered the house of the Molina Theissen family, in Ciudad de Guatemala, while a third man stayed outside on watch. At that moment Marco Antonio and his mother were in the house. One of the men handcuffed Marco Antonio to an armchair and silenced him by applying adhesive tape to his mouth. In the meantime the other man beat Mrs. Molina Theissen and attempted to lock her in another room. The two men searched the whole flat. Then they left, taking Marco Antonio with them, and put him in a pick up truck with the official army number plate. Mrs. Molina Theissen was able to get out of the room in time to see the two men taking her son away. That was the last time she ever saw him. Marco Antonio’s relatives looked for him for months and tried to denounce the crime to every available authority. No effective investigation was carried out, nor was a proceeding ever set up. Right up until today no one has been condemned for the disappearance of Marco Antonio. Moreover the members of the family received death threats and attacks. They all had


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to leave the country to seek refuge. Some went to Mexico, some to Ecuador and some to Costa Rica. In April 2004 at the public hearing held in San José the representative of the Guatemalan government publicly admitted the international responsibility of the State – in the name of the new President of the Republic – begged pardon and recognized as violated Articles 1.1 (obligation to respect rights), 2 (domestic legal effects), 4.1 (right to life), 5.1 and 5.2 (right to humane treatment), 7 (right to personal liberty), 8 (right to a fair trial), 17 (rights of the family), 19 (rights of the child) and 25 (right to judicial protection) of the American Convention. As in the Trujillo Oroza133 case, the government recognized and accepted its responsibility since the occurrence of the abduction (1981), notwithstanding the fact that Guatemala had accepted the adjudicatory jurisdiction of the Court only in 1987. This allowed the Court to declare as violated the right to life of the victim as well. The Court, according to the communication and the terms of the public admission of responsibility by the government, considered as proved that: The threats and intimidation of the victims’ next of kin continued for some time after the detention, so as to curb their initiatives to locate the persons detained and to heighten their fear. Between 1979 and 1983, the period coinciding with the exacerbation of the internal conflict in Guatemala, boys and girls were subjected to many human rights violations, and were direct victims of forced disappearance, arbitrary execution, torture, abduction, rape, and other acts that violated their fundamental rights. The threats and torture to which they were subjected were used as a way of torturing their families, and were designed to instill exemplary terror in them.134

The Court dealt with the phenomenon of the disappearance of children as an autonomous criminal offence, with its own nature and scope. This led not only to the declaration of the violation of Articles 17 and 19, but also to consequences at the moment of the determination of the reparations. The Court expressly recalled the principle of the “best interest” of the child, set out by Article 3 of the 1989 Convention on the Rights of the Child. In the judgment concerning reparations135 the Court ordered Guatemala to search for the mortal remains of Marco Antonio and to give them back to the family, to carry out a prompt, effective and thorough investigation

133 134 135

See infra 2.3.M. IACHR, Case Molina Theissen (Merits; supra note 132), paras. 40.5 and 40.6. IACHR, Case Molina Theissen (Reparations, supra note 132).

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leading to the incrimination and punishment after a criminal proceeding of those responsible for the disappearance, to hold a public ceremony in which the highest authorities of the Guatemalan government were to issue an apology to the Molina Theissen family and admit their responsibility and to name an educational centre in Ciudad de Guatemala “Marco Antonio Molina Theissen”. Moreover The Court deems that, pursuant to Article 2 of the Convention, the State must adopt the domestic legislative, administrative, and other provisions required to establish: a) an expedite procedure to allow statement of absence and presumption of death due to forced disappearance, for purposes of parentage, inheritance and reparation as well as other related civil effects; and b) a genetic information system to enable establishment and clarification of parentage of missing children and their identification.136

Furthermore, the Court recognized a pecuniary compensation to Marco Antonio as lost profit, on the basis of his “life projects”: The Court deems that it is reasonable to presume that Marco Antonio would have completed his secondary school studies and went on to study at the university, but there is no definite fact that enables it to determine the activity or profession that he would practice in the future, which “must be calculated on the basis of a definite injury that is sufficiently substantiated to find that the injury likely occurred.” Therefore, with respect to Marco Antonio Molina Theissen’s lost earnings, this Court sets the amount for this item, in fairness, at US $100,000.00.137

The Court also made important considerations about the psychological consequences of the disappearance of Marco Antonio and of the exile to which the members of his family had been subjected: The forced disappearance of the child Marco Antonio Molina Theissen caused his mother, Emma Theissen Álvarez Vda. de Molina, his father Carlos Augusto Molina Palma and his sisters Ana Lucrecia Molina Theissen, María Eugenia Molina Theissen and Emma Guadalupe Molina Theissen, deep grief, suffering, and feelings of guilt. The facts in the instant case and the subsequent exile of the Molina Theissen family also altered the conditions of its members’ lives; his parents stopped working to focus exclusively on finding their son; his sisters also gave up their jobs and their studies; the family felt constant danger due to the persecution it suffered. The victim’s parents and sisters were forced to leave Guatemala toward different countries, which for them meant abandon-

136 137

Ibid., para. 91. Ibid., para. 57.


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ing the search for Marco Antonio, their next of kin, friends and colleagues at work, roots and belongings, and reestablishing themselves in a different society. Furthermore, as was demonstrated at the public hearing the Molina Theissen family was deeply united and there was a strong relationship and affection between the parents and the sisters and among the latter. Their separation, together with the guilt they felt for Marco Antonio’s disappearance, broke up the household. Finally, prevailing impunity in this case has been and continues to be a source of suffering for the next of kin.138

2.3.P

19 Comerciantes v. Colombia

On 5 July 2004 the Court delivered the judgement on the case 19 Comerciantes v. Colombia.139 This case is of particular importance as regards the establishment by an international tribunal of the responsibility of a State for disappearances carried out by members of a paramilitary group. Colombia, which for more than 40 years has been experiencing a situation of internal armed conflict, is at present one of the countries where the phenomenon of enforced disappearances has reached its greatest intensity. According to available information those responsible for the majority of the acts of enforced disappearance belong both to the army and to paramilitary groups.140 The legal questions raised by enforced disappearances carried out by the latter are particularly delicate and, until the 19 Comerciantes judgment, this kind of disappearance represented a gap in the framework of international human rights law. In the past the Working Group on Enforced or Involuntary Disappearances did not accept cases not attributable to State agents141 and the Committee had not received complaints specifically concerning this issue. For this reason for over forty years these institutions did not address the situation of Colombia as regards paramilitary groups. The facts of the case occurred in 1987, in one of the most dangerous regions of the country: Magdalena Medio, at the border with Venezuela.

138 139 140

141

Ibid., para. 69. IACHR, Case 19 Comerciantes v. Colombia, judgment of 5 July 2004, Ser. C No. 109. From 5 to 13 July 2005, the UNGWEID has carried out its second in loco visit to Colombia (Report of the UNGWEID – Mission to Colombia, E/CN.4/2006/56/Add.1, 17 January 2006). See supra 1.5. The United Nations Working Group on Enforced or Involuntary Disappearances did not accept, for over eighteen years, cases where members of paramilitary groups were reported as being responsible. It changed the interpretation of its mandate in 2004. At present the Working Group admits cases of enforced disappearance allegedly carried out by State agents or by the paramilitary. Only cases regarding enforced disappearances carried out by guerrillas or subversive movements are rejected.

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The comerciantes (traders), who gave the name to the case, used to buy goods in Venezuela, cross the border and sell them in Colombia. On the morning of 3 October 1987 a convoy of seventeen men transporting goods left the city of Cúcuta, heading for Medellín. During the trip a military road block stopped them to check their documents and the goods they were transporting. This was the last time they were seen alive. It was then reconstructed that, after a few kilometres, members of the paramilitary group known as ACDEGAM led by a local landlord intercepted them. They were taken to the latter’s farm, presumably tortured and finally killed. Their bodies were torn into pieces and thrown into a river. Their relatives in the attempt to find them or at least find out what had happened, besides reporting the facts to the public authorities, organized small “search groups”. Two men, members of one of these groups, disappeared as well. It has been proved that they were captured by the same paramilitary group and that they suffered the same fate as the first seventeen traders. The surviving relatives were victims of death threats and several reprisals. One more person was killed and an entire family had to escape to Canada to seek refuge. The attempts to obtain justice were systematically frustrated: seventeen years of criminal, civil, military, administrative and disciplinary proceedings only led to the condemnation of three civilians, as authors of the crimes of “kidnapping for ransom” and “aggravated murder” (at the time the Colombian Criminal Code did not codify the offence of enforced disappearance, which was introduced only in 2000), and two other civilians as accomplices in the crime. Of all the military officers involved none could be condemned as the military courts took the case into their competence and shortly afterwards declared the case barred to further proceedings. When filing the application to the Interamerican Court, the Commission alleged the violation of Articles 4 (right to life), 5 (right to humane treatment, both with regard to the material victims and to the relatives), 7 (right to personal liberty), 8 (right to a fair trial) and 25 (right to judicial protection), all in conjunction with Article 1.1 (obligation to respect rights) of the American Convention. The Court had to establish what relationship existed between the army and the paramilitary. In 1965 a Legislative Decree,142 adopted to tackle the

142

Legislative Decree No. 3398 of 24 December 1965 (it was converted into a permanent legislation by Law No. 48 of 16 December 1968).


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emergency situation of the country, authorized individuals to arm themselves and to create “self-defence groups”. It further allowed the army to “use” individuals and provide them with weapons when it was deemed appropriate to do so. Under the provisions of the decree, which was converted into permanent legislation, landlords, rich businessmen and especially drug traffickers created their own “private armies” to protect their activities. During the Eighties the phenomenon became endemic and the “paramilitary” groups, receiving weapons and logistic support from the Colombian army, changed their nature of “self-defence” into one of aggression. When, in the late Eighties, the government realized that the situation had got completely out of its control, it adopted criminal provisions creating and sanctioning the specific offence of “para-militarism”. But it was too late. When the fact of the 19 Comerciantes case happened, the paramilitary group ACDEGAM had full control over the Magdalena Medio region and acted with the direct support of the Colombian army. When the nineteen traders disappeared, an army unit failed to prevent the violations of their rights and, instead, acted in full acquiescence with the paramilitaries. The Court noted that: In a number of significant cases, the investigations conducted by the Judiciary and the Attorney General’s office have demonstrated the active participation of members of the security forces in the so-called “paramilitary” groups. [. . .] At the time of the facts of this case, the abovementioned “paramilitary” group that operated in the Magdalena Medio region acted with the collaboration and support of different military authorities of the battalions in that region. The members of the “paramilitary” group had the support of the senior military leaders in the activities preceding the detention of the alleged victims and when they committed the crimes against the latter. Even though, at the time of the events, law enforcement personnel knew that the “paramilitary” group operating in the region exercised substantial control over it and acted against the law, “they let them [gain] advantage and failed to control and monitor them”.143

In accordance with its previous jurisprudence, the Court declared the violation of Articles 4, 5 (with regard to both the material victims and their relatives), 7, 8.1 and 25, all in conjunction with Article 1.1. When determining the adequate reparations the Court ordered Colombia to carry out, within a reasonable time, a thorough investigation of the merits of the case, to judge and sanction those found to be responsible and to publish 143

IACHR, Case 19 Comerciantes, supra note 139, paras. 86.a), b) and c).

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the relevant decisions. With regard to the mortal remains of the material victims, as it had been accepted as proved that they had been thrown into a river over seventeen years earlier, the Court deemed it appropriate to order Colombia to carry out a serious search for them and, if possible, to give them back to the relatives of the victims. Accepting the demands of most of the relatives, the Court ordered Colombia to build a monument in memory of those who had disappeared and to hold a public ceremony to commemorate them by affixing a plate with all their names in a place chosen by the relatives in agreement with local authorities. Moreover the Court, for the purposes of restoring the dignity and the honour of the victims and in the hopes of sending a message of justice to Colombian society, ordered Colombia to hold a public ceremony at which both the relatives of the victims and the highest authorities of the government would participate. The latter were to issue an apology and admit their international responsibility. Having regard to the peculiarities of the case, the Court ordered Colombia to pay for the medical treatment and psychological therapy for all the relatives in need of such measures. Another innovative measure adopted by the Court relates to the specific situation of one of the families of relatives who had been forced to leave the country to save themselves from repeated death threats and attacks. The members of the family were granted the status of political refugees in Canada. The Court considered the humiliating and difficult situation of the exile (as described by witnesses at the public hearings) as a specific consequence of the violations committed by the State and ordered Colombia to establish the necessary conditions to grant, if the exiles so wished, their safe return to the country. Considering the peculiarities of the socio-political context of Colombia, the Court did not make any order to publish the judgment in the official bulletin in order to prevent reprisals. But it ordered Colombia to protect and take all necessary steps to grant the security of all the people and relatives of all the people that testified on the case. Material and moral damages were awarded as well. 2.3.Q

Hermanas Serrano Cruz v. El Salvador

On 1 March 2005 the Court delivered a judgment on the case Hermanas Serrano Cruz v. El Salvador.144 The complaint referred to events which took 144

IACHR, Case Hermanas Serrano Cruz v. El Salvador, judgment of 23 November 2004, Ser. C No. 118 (Preliminary Objections); judgment of 1 March 2005, Ser. C No. 120 (Merits).


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place in June 1982 when the two sisters Ernestina and Erlinda, at that time seven and three years old, were captured, abducted and caused to disappear by members of the Atlacatl division of the Salvadorian army. This happened during an operation carried out in the Municipality of San Antonio de la Cruz, in the region of Chalatenango, by about 14,000 soldiers, in the context of the internal armed conflict in El Salvador. According to the Interamerican Commission, the Serrano Cruz family attempted to escape the army by abandoning their house. The mother of the two little girls and a son succeeded in abandoning the area surrounded by the soldiers, while the father, the two little girls and two other siblings (one of whom was with her 6-month old baby) walked for three days in the woods and hid for another three days in a small building, without eating or drinking. When the two little sisters were left alone for a while, as they were scared and confused, they started to cry. The soldiers found them. The elder sister, who was hiding close to the scene, heard one soldier ask another: “Do I kill them or do we take them away?” The reply was: “Take them away”. A witness saw the two children entering a military helicopter which afterwards headed off towards the nearby village of Chalatenango. The mother and the elder sister subsequently escaped and obtained the status of refugees in Honduras. It was only in March 1993, when the Truth Commission set up by the United Nations released its Final Report about the violations of human rights that took place in El Salvador during the internal armed conflict, that the mother found the courage to file a complaint to the judicial authorities alleging the disappearance of her daughters and asking to clarify and establish their fate and whereabouts. The Salvadorian judiciary, which had remained paralyzed throughout the previous twelve years, dismissed the case in March 1998. No one was charged with the disappearance of the children, nor was any information about their fate released. The Interamerican Commission asked the Court to declare El Salvador responsible for the violation, to the detriment of the two sisters Ernestina and Erlinda Serrano Cruz and their relatives, of Articles 4 (right to life), 5 (right to humane treatment), 7 (right to personal liberty), 8 (right to a fair trial), 17 (rights of the family), 18 (right to a name), 19 (rights of the child) and 25 (right to judicial protection) of the American Convention in conjunction with Article 1.1 (obligation to respect rights). Among the four preliminary objections145 formulated by El Salvador, one was based on ratione temporis reasons. On 6 June 1995, when El Salvador 145

The four preliminary objections formulated by El Salvador were: 1) Lack of competence

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recognized the adjudicatory jurisdiction of the Court, it specified that its acceptance did not include facts that happened or began to happen after the date of deposit of the declaration of acceptance.146 At the public hearing held in San José in September 2004, the representative of El Salvador specified that its declaration was intended as: La reserva hecha a la competencia de la Corte Interamericana no sólo excluye de la competencia del Tribunal a aquellos hechos o actos jurídicos cuyos principios de ejecución sean posteriores a la fecha de depósito de la declaración de aceptación, sino también las violaciones continuadas con principios de ejecución anteriores al sometimiento de la competencia.147

According to El Salvador, the reservation to its ratione temporis declaration would make it impossible to recall and apply the criteria based on the continuous nature of the offence of enforced disappearance, already established by the Court in the Blake case,148 as the facts of the Serrano Cruz case and their effects began before 6 June 1995. The Court upheld this assumption, limiting itself to consider the violations of Articles 8 and 25, which began

146

147

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of the Interamerican Court ratione temporis, due to the terms in which El Salvador had accepted the adjudicatory jurisdiction of the tribunal. 2) Lack of competence ratione materiae, as the case substantially concerned a matter of international humanitarian law and not of human rights law. 3) Inadmissibility of the application in reason of its “obscurity and incongruence”. 4) Non exhaustion of domestic remedies. Original version in Spanish: “El Gobierno de El Salvador, al reconocer tal competencia, deja constancia que su aceptación se hace por plazo indefinido, bajo condición de reciprocidad y con la reserva que de que los casos en que se reconoce la competencia, comprende sola y exclusivamente hechos o actos jurídicos posteriores o hechos o actos jurídicos cuyo principio de ejecución sean posteriores a la fecha del depósito de esta Declaración de Aceptación, reservándose el derecho de hacer cesar la competencia en el momento que lo considere oportuno”. English version: “The Government of El Salvador, in recognizing that competence, expressed that its recognition is for an indefinite period and on condition of reciprocity, and that it retains the right to include exclusively subsequent deeds or juridical acts or deeds or juridical acts begun subsequent to the date of deposit of this declaration of acceptance, by reserving the right to withdraw its recognition of competence whenever it may deem it advisable to do so”. IACHR, Case Hermanas Serrano Cruz (Preliminary Objections; supra note 144), para. 54. “The reservation to the competence of the Interamerican Court not only excludes from the competence of the Tribunal those deeds or juridical acts begun subsequent to the date of deposit of the declaration of acceptance, but also the ongoing violations that began before the recognition of competence” (unofficial translation by the authors). See supra 2.3.I.


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after the acceptance of its competence, and declaring its lack of competence ratione temporis as regards the other alleged violations: La Corte no se pronunciará sobre la supuesta desaparición forzada de Ernestina y Erlinda Serrano Cruz y, en consecuencia, sobre ninguno de los alegatos que sustentan violaciones relacionadas con dicha desaparición.149

The Court merely stated that Article 62.2 of the American Convention allows States Parties to formulate limitations to its competence and that El Salvador availed itself of this opportunity. However, the Court did not examine the question whether the reservation made to the declaration by El Salvador could be considered admissible. As persuasively remarked in the dissenting opinion of Judge Cançado Trindade, Article 62.2 allows only three kinds of admissible reservations (reciprocity; for a specific period; for specific cases)150 and the Salvadorian reservation does not fall into any of them. No se trata de aceptación incondicional. Tampoco se trata de aceptación bajo condición de reciprocidad. A contrario de lo que supuso la mayoría de la Corte en la presente sentencia, tampoco se trata de aceptación por un plazo determinado, pues lo que prevalece en la limitación interpuesta por el Estado es un plazo enteramente indeterminado, que se prolonga indefinidamente en el tiempo. Y tampoco se trata de casos específicos, sino más bien de toda y cualquiera situación que se encuadra en los términos amplios e indefinidos de la limitación estatal. [. . .] Por razones que escapan a mí comprensión, la mayoría de la Corte admitió la parte de la primera excepción preliminar interpuesta por el Estado en ese sentido (una forma híbrida y nebulosa de excepción al mismo tiempo ratione temporis y ratione materiae), por tiempo indeterminado y de alcance amplio, general e indefinido, cuando debería, a mi juicio, declárarla inadmisible e inválida. [. . .] Esta decisión de la Corte Interamericana tampoco está conforme a su propia jurisprudencia reciente al respecto, siendo, pues, a mi modo de ver, regresiva.151

149

150

151

IACHR, Case Hermanas Serrano Cruz (Preliminary Objections; supra note 144), para. 79. “The Court shall not pronounce itself on the supposed enforced disappearance of Ernestina and Erlinda Serrano Cruz and, consequently, on any of the allegations that are based on violations related to the mentioned disappearance” (unofficial translation by the authors). Article 62.2: “Such declaration may be made unconditionally, on the condition of reciprocity, for a specific period, or for specific cases. It shall be presented to the Secretary General of the Organization, who shall transmit copies thereof to the other member states of the Organization and to the Secretary of the Court”. IACHR, Case Hermanas Serrano Cruz (Preliminary Objections; supra note 144), dissenting

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As regards the merits, the Court declared that El Salvador was responsible for the violation of Articles 8, 25 and 5, together with Article 1.1, of the American Convention, with regard to the relatives of the two sisters who disappeared. In particular, the Court ordered El Salvador to undertake a series of measures of reparation, namely: to conduct, as soon as possible, an impartial and thorough investigation and to try and sanction those found to be responsible for the disappearance of the two sisters; to effectively search for them, removing all eventual bureaucratic obstacles; to publish the results of the criminal proceedings; to create a national commission to search for all the children who disappeared during the internal armed conflict, involving as much as possible representatives of civilian society; to create a web page for the exchange of data about disappeared children; to create a national genetic database in order to identify disappeared children; to hold a public ceremony admitting its international responsibility for the declared violations of human rights;152 to declare a “national day of disappeared children”; to provide all relatives of the two disappeared sisters with psychological treatment and, in the case in which the two sisters are found alive, to provide them with the same treatment; to cover both material and moral damages. Indeed, although the Court did not analyze the facts directly connected with the disappearance of the two sisters, it ordered measures of reparation

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opinion of Judge A.A. Cançado Trindade: “This is not an unconditional acceptance. Nor it is an acceptance of the condition of reciprocity. Further, contrary to what has been supposed by the majority of the Court in the present judgement, it is not an acceptance for a specified period, as what prevails in the limitation formulated by the State is a completely undetermined period, that lasts indefinitely. Finally, the acceptance is not for specific cases, but it extends to all situations falling under the wide and indefinite terms of the limitation formulated by the State. (. . .) For reasons that I cannot understand, the majority of the Court admitted the part of the first preliminary objection of the State in this sense (a hybrid and uncertain form of objection at the same time ratione temporis and ratione materiae), for an undetermined period and of a wide, general and undetermined meaning when, according to my understanding, it should declare it inadmissible and null. [. . .] This decision of the Interamerican Court is not in accordance with its recent case law on the issue and it is, in my understanding, a step backwards” (paras. 13, 14, 16 and 17; unofficial translation by the authors). Such a ceremony was celebrated in March 2006. Unfortunately the Salvadorian authorities taking part in the event did not “recognize their responsibility” nor “beg pardon”, but they stated that they regretted (lamentan) the events that happened to the Serrano Cruz family.


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corresponding to those that it would have ordered if it had declared violations of the right to life, the right to name, the rights of the family and the rights of the child. 2.3.R

Masacre de Mapiripán v. Colombia

The judgment rendered by the Court on 15 September 2005 in the case Masacre de Mapiripán v. Colombia relates to massive extra-judiciary executions and enforced disappearances committed by paramilitary groups in the context of the Colombian armed conflict.153 The difference between “massive extra-judiciary executions” and “collective disappearances” may be not always clear. In principle, in all cases where the mortal remains of people who have been executed extra-judiciary have not been located and identified, these people shall be considered as having disappeared, with the ensuing relevant consequences as regards the application of the statute of limitations. However, in deciding the Mapiripán case the Court practically avoided qualifying the facts as enforced disappearances, even though it was impossible to identify the great majority of the victims due to the inhuman treatment given to their remains. On 12 June 1997 about 100 members of the paramilitary group Autodefensas Unidas de Colombia (hereinafter referred to as “AUC”) landed with irregular flights at an airport of the Meta department and were picked up by members of the regular army who took the paramilitaries to Mapiripán. Along the way some other paramilitaries joined the first group. All the paramilitaries could freely move through areas reserved for military training. On 15 June 1997 over one hundred armed men surrounded Mapiripán and took control of the village, all means of communication and the public offices. They then threatened the whole community and killed several inhabitants. Notwithstanding their knowledge of the presence of the AUC in Mapiripán and of the attack against the lives of the inhabitants of the village, the Colombian authorities remained completely passive. The paramilitary members remained in Mapiripán from 15 to 20 July, impeding the free circulation of the inhabitants and torturing, chopping up, butchering and cutting off the

153

IACHR, Case Masacre de Mapiripán v. Colombia, judgment of 15 September 2005, Ser. C No. 134. Other cases of a hybrid nature (extra-judiciary executions or disappearances) are Comunidad de Moiwana v. Suriname, judgment of 15 June 2005, Ser. C No. 124; Masacre de Plan de Sánchez v. Guatemala, judgment of 29 April 2004, Ser. C No. 105 (Merits).

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heads of approximately forty-nine people, including children. Finally, they threw the mortal remains into the Guaviare river. Once they had concluded the operation, the AUC destroyed the majority of the evidence and altered the scene of the crime. For this reason it has not been possible to identify all the mortal remains and to determine the exact number of the victims of the massacre. Although the massacre has been publicly acknowledged by the paramilitary boss Carlos Castaño Gil154 and over one hundred men participated in the operation, as of today only seven people have been given a prison sentence. After the Mapiripán massacre the majority of the survivors lost their properties and were forced into internal displacement. At present between 1.5 and 3 million people have been forced to internally displace in Colombia.155 When the case of the massacre was presented to the Court, Colombia publicly acknowledged its international responsibility with regard to the violation of Articles 4.1 (right to life), 5.1 and 5.2 (right to humane treatment) and 7.1 and 7.2 (right to personal liberty) of the American Convention. But Colombia reiterated the preliminary objection regarding non-exhaustion of domestic remedies (already rejected by the Court), did not recognize as violated Articles 5.1 and 5.2 with regard to the relatives of the victims and declared several times that it did not accept responsibility for acts committed by members of paramilitary groups. In its judgment the Court pointed out that, in the case of Mapiripán, State agents were involved in direct cooperation, and not only by means of omission, with regard to the operation carried out by the paramilitaries. Accordingly, the Court found the existence of the international responsibility of Colombia with regard to both positive actions and omissions committed by State agents, who acted together with private individuals in order to perpetrate the massacre.156 The Court accepted the Colombian public acknowledgement of responsibility. However, it did not confine itself to the terms of the latter and declared as violated also Articles 5, 8 (right to a fair trial) and 25 (right to judicial protection) of the American Convention 154

155 156

Carlos Castaño Gil told the media that what happened in Mapiripán had to be considered as: “el combate más grande que han tenido las autodefensas en su historia. Nunca habíamos dado de baja a 49 miembros de las FARC, ni recuperado 47 fusiles. (. . .) Va a haber muchos más Mapiripanes”. See IACHR, Masacre de Mapiripán, supra note 153, para. 96.50. Paras. 96.57–96.67. Ibid., paras. 101–123.


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with regard to the relatives of the direct victims. The Court also declared the violation of Articles 22.1 (freedom of movement and residence), 4.1, 5.1 and 19 (rights of the child) of the American Convention with regard the relatives of the material victims who were forced to internally displace. The Court reiterated its case law on the incompatibility of military courts to deal with enforced disappearances.157 It also pointed out that: Ninguna ley ni disposición de derecho interno puede impedir a un Estado cumplir con la obligación de investigar y sancionar a los responsables de violaciones de derechos humanos. En particular, son inaceptables las disposiciones de amnistía, las reglas de prescripción y el establecimiento de excluyentes de responsabilidad que pretendan impedir la investigación y sanción de los responsables de las violaciones graves de los derechos humanos.158

The amounts of pecuniary compensation were determined by equity. All sums awarded to people who were minors when the facts occurred were increased in consideration of the greater vulnerability of children.159 The Court ordered Colombia to carry out a number of measures of reparation, namely: to grant psychological and medical treatment, free of charge and including all necessary medicines, to the relatives of the victims of the massacre that so required it; to take all necessary measures in order to grant the required security conditions to the displaced relatives who wanted to return to Mapiripán; to build a monument to honour the memory of the victims of the massacre; to publish the abstract of the judgment both in the official

157 158

159

Ibid., paras. 199–206. On the subject see infra 4.7. Ibid., para. 304. “No domestic law or regulation – including amnesty laws and statutes of limitations – may impede the State’s compliance with the Court’s order to investigate and punish perpetrators of human rights violations. In particular, amnesty laws, statutes of limitation and related provisions that hinder the investigation and punishment of serious human rights violations – such those of the present case – are inadmissible, as said violations contravene non-derogable rights recognized in human rights law” (unofficial translation by the authors). On 22 June 2005 the Colombian Congress passed Ley 975, the so-called “Ley de Justicia y Paz”, to grant the demobilization of members of the illegal armed groups. This amnesty law does not seem to respect the international standards on the right to truth, the right to justice and the right to just satisfaction of the victims. Indeed the Colombian Constitutional Law has declared this measure partially unconstitutional in a judgment (C-370) rendered on 18 May 2006. On amnesty laws or similar measures, see infra 4.8. This criterion was applied for the first time in the case law of the Court. However, it is fully compatible with Article 19 of the American Convention. See IACHR, Case Masacre de Mapiripán, supra note 153, paras. 288.b and 288.c.iii.

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bulletin of the State and in a national newspaper. Taking into account the peculiarities of the case and the seriousness of the security problems in the country, the Court determined that Colombia had to establish an authority (with the participation of some of the relatives of the victims and their representatives) in charge of the implementation of the measures of reparation. This authority is intended to work over a period of two years and to be in permanent contact with all the relatives of the victims so as to avoid threats or attacks against their lives. The Court ordered Colombia to take all necessary measures in order to investigate, judge and sanction both the material and intellectual authors of the massacre, as well as all participants in the latter, to take all necessary steps to locate and to exhume the mortal remains of the victims of the massacre and to give them back to the relatives, to establish a genetic database in order to identify the victims of the massacre and their relatives.160 Moreover, the Court ordered Colombia to establish, as soon as possible, educational programmes on international human rights law and international humanitarian law for all members of the Colombian army. This measure of reparation has a strong preventive nature and is in conformity with international standards on the issue.161 2.3.S

Gómez Palomino v. Peru

The Gómez Palomino case,162 decided on 22 November 2005, refers to a disappearance which took place in the context of the internal armed conflict in Peru and which was carried out by the paramilitary group known as Grupo Colina, composed of former members of the Peruvian army and actively supported by the latter. In 2005 Peru partially recognized its international responsibility, admitting violations of Articles 1.1 (obligation to respect rights), 4.1 (right to life), 5.1 and 5.2 (right to humane treatment), 7.1, 7.2, 7.3, 7.4, 7.5 and 7.7 (right to personal liberty) with respect to Santiago Gómez Palomino. Further, it generically recognized “the prejudices suffered by the family and the partner of the victim”. Indeed, it did not admit any violation of the right to fair

160 161 162

See infra 4.12. See Article 23 of the 2007 Convention. On the subject see infra 4.13. IACHR, Case Gómez Palomino v. Peru, judgment of 22 November 2005, Ser. C No. 136.


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trial and to judicial guarantees, even though the disappearance of the victim was substantially followed by total impunity. Mr. Gómez Palomino was taken away from his house on 9 July 1992 by a group of armed men and women who, apparently, were searching for the former owner of the house and he subsequently disappeared. He was insulted and beaten by the members of the group and, when he denied having any relevant information on the former owner of the house, he was taken away while his partner and his aunt were threatened in case they reported the events. That was the last time Mr. Gómez Palomino was seen alive. According to the testimony of a repentant member of the Grupo Colina, this paramilitary group was responsible for the crime. He further admitted that Mr. Gómez Palomino was taken to a beach close to Lima, forced to dig a ditch and finally extra-judiciary executed and buried there. At present, the human remains of Mr. Gómez Palomino have not been exhumed nor identified, so that his whereabouts remain unknown and he is still listed as disappeared. Analyzing the case the Court found a violation of Article 5.1 with respect to the relatives of Mr. Gómez Palomino for the continued state of stress, frustration and pain they have been forced to suffer for over 14 years. The Court also declared the responsibility of Peru for the violation of Articles 8.1 (right to a fair trial) and 25 (right to judicial protection) in conjunction with Article 1.1 as regards Mr. Gómez Palomino and his relatives. The Court found that the proceedings exceeded any reasonable delay and the activities carried out had not been sufficient to establish the whereabouts of the victim nor to judge and sanction all those responsible for the crime, consequently violating the right to truth of the relatives of the victim and of Peruvian society as a whole. Of particular interest are the considerations made by the Court on the definition163 of the crime of enforced disappearance under the Peruvian criminal code and on the State’s obligations under Article I of the 1994 Interamerican Convention (ratified by Peru on 13 February 2002) in conjunction with Article 2 (domestic legal effects) of the American Convention.164 Article 320 of the Peruvian Criminal Code provides that:

163 164

See infra 4.2. IACHR, Case Gómez Palomino, supra note 163, paras. 90–110, and joint concurring opinion of Judge S. García Ramírez, paras. 1–33.

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El funcionario o servidor público que prive a una persona de su libertad, ordenando o ejecutando acciones que tengan por resultado su desaparición debidamente comprobada, será reprimido con pena privativa de libertad no menor de quince años e inhabilitación, conforme al artículo 36 incisos 1 y 2 del Código Penal.165

The Court examined the compatibility of such a definition with the one provided by Article II of the 1994 Interamerican Convention and with Article 2 of the Final Draft of the International Convention for the Protection of All Persons from Enforced Disappearance. The analysis focused on three elements, namely the subjective element (author of the offence), the denial of information on the deprivation of liberty and the need to “duly prove” the disappearance required under the Peruvian code. On the issue of the subjective element of the offence, the Court found that the Peruvian definition is not in accordance with international standards as it is limited to “officers or civil servants”. In accordance with international standards, all State agents and “persons or groups of persons acting with the authorization, support or acquiescence of the State” shall be considered when framing a criminal definition of enforced disappearance. The Court also found the Peruvian definition incomplete as regards the constitutive elements of the offence. In the Peruvian text only “deprivation of liberty” is mentioned, while international standards provide that an enforced disappearance is committed when there is a deprivation of liberty (arrest, detention, abduction or any other form), followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person which places such a person outside the protection of the law. Finally, the Court held that the condition that the enforced disappearance must be “duly proved” (debidamente comprobada) raises serious problems of interpretation and substantially imposes an undue burden of proof on the relatives of the disappeared person. Accordingly, the Court ordered to Peru as a form of reparation166 to

165

166

“The official or civil servant that deprives a person of his liberty, by ordering or carrying out actions that result in a duly proven disappearance, shall be sentenced to no less than 15 years imprisonment and disqualification, according to Article 36, paras. 1 and 2, of the Criminal Code” (unofficial translation by the authors). The IACHR further ordered to Peru: to pay pecuniary compensation for material and moral damages; to investigate the facts and to identify, judge and sanction those responsible for the crime; to locate, exhume and identify the mortal remains of the victim and give them back to his relatives covering the costs of the burial; to offer free medical and


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modify the definition of enforced disappearance of the Peruvian criminal code and to bring it into accordance with the American Convention and the 1994 Interamerican Convention.167 2.3.T

Blanco Romero and others v. Venezuela

On 28 November 2005, the Court judged the case Blanco Romero and others v. Venezuela.168 In December 1999, when the Venezuelan region of Estado Vargas was hit by a flood, the Venezuelan parliament issued a decree declaring a state of emergency and giving special powers to the army. On that occasion members of the security forces committed several violations of human rights, among which the illegal arrests that resulted in the disappearance of Oscar José Blanco Romero, Roberto Javier Hernández Paz and José Francisco Rivas Fernández. On different days, groups of men of the Venezuelan army broke into the houses of the victims and took them forcibly away, beat them and, in one case, fired at the victim. Their relatives actively searched for them, but no Venezuelan authority admitted the arrest of the three men. Their names were not listed in any register of detention. Their fate and whereabouts remain unknown. Domestic remedies did not prove to be effective and no one was formally summoned for the disappearance of the three men. At the public hearing in Court, the Venezuelan government publicly recognized its international responsibility as regards the violation of Articles 4.1 (right to life), 5.1 and 5.2 (right to humane treatment), 7.1, 7.2, 7.3, 7.4, 7.5 and 7.6 (right to personal liberty), 8.1 (right to a fair trial), 25 (right to judicial protection), all in conjunction with 1.1 (obligation to respect rights) and 2 (domestic legal effects) of the American Convention. Further, Venezuela acknowledged its responsibility for the violation of Articles 1, 5, 6, 7 and 8 of the Interamerican Convention against Torture and of Articles I.a, I.b, X and XI of the 1994 Interamerican Convention. All these violations regarded the three material victims of the case.

167 168

psychological treatment to the relatives of the victim if they so wish; and to offer special programmes of education to all relatives of the victim who were forced to leave their studies if they so wish (scholarships are transferable to sons and daughters of the relatives if they do not wish to use them), as well as a special programme of bilingual alphabetization to the mother of the victim (who is illiterate and Quechua mother-tongue). IACHR, Case Gómez Palomino, supra note 163, para. 149. IACHR, Case Blanco Romero and others v. Venezuela, judgment of 28 November 2005, Ser. C No. 137.

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The Court accepted the terms of the Venezuelan acknowledgement of responsibility. Nonetheless, it also declared the violation of Articles 5.1, 8.1, and 25, in conjunction with Article 1.1, with respect to the relatives of the material victims. The Court ordered Venezuela to pay compensation for moral and material damages. It also ordered Venezuela to: investigate the case and identify, judge and sanction those responsible; locate, identify and return to the families the mortal remains of the victims; publish relevant abstracts of the judgment in the official bulletin as well as in a national newspaper; take all necessary measures to make the habeas corpus an effective remedy in the domestic legal system; modify the provision of the Venezuelan criminal code on enforced disappearance bringing it into accordance with international standards;169 establish a training and educational programme for members of Venezuelan security forces with the purpose of explaining the prohibition of enforced disappearance, acts of torture and inhuman and degrading treatment and the prohibition of ultra vires acts; take all necessary measures to allow the daughter of one of the victims who so wishes to leave the country due to security reasons. 2.3.U Masacre de Pueblo Bello v. Colombia The case Masacre de Pueblo Bello v. Colombia,170 decided on 31 January 2006, refers to facts which happened on 14 January 1990 when approximately sixty men belonging to a paramilitary group led by the boss Fidel Castaño broke into the Pueblo Bello village. For almost two hours they threatened the population, destroyed several houses and ill treated the inhabitants. They picked up forty-three men (among whom three minors), took them to the central square of the village, gagged and handcuffed them and took them away. The victims were allegedly brought to the farm of the leader of the paramilitary group where they were tortured and extra-judiciary killed. Their bodies were chopped up and butchered. Some were thrown into the Sinú river and others buried in common graves. At present, thirty-seven persons remain disappeared, while the corpses of six victims have been located, identified and returned to their relatives. A repentant member of

169

170

In this case, contrary to the Gómez Palomino case (supra 2.3.S), there is no mention of the draft of the future 2007 Convention or the 1992 Declaration. The only international instruments referred to are the American Convention and the 1994 Interamerican Convention. See IACHR, Case Blanco Romero and others, supra note 169, para. 105. IACHR, Case Masacre de Pueblo Bello v. Colombia, judgment of 31 January 2006, Ser. C No. 140.


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the paramilitary group has provided Colombian authorities with further details on the location of the other mortal remains. However, excavations carried out since then have been conducted in a manner inconsistent with international standards and may have compromised the chance to identify the remains, causing deep suffering to the relatives of the victims.171 After over sixteen years only five people have been sentenced for the Pueblo Bello massacre out of more than sixty participants. No sentence has been pronounced against any of the intellectual authors. The Court, confirming State responsibility in cases where paramilitary groups are actively involved,172 declared the violation of Articles 4.1 (right to life), 5.1 and 5.2 (right to humane treatment), 7.1 and 7.2 (right to personal liberty) in conjunction with Article 1.1 (obligation to respect rights) of the American Convention, with regard to the material victims of the massacre.173 The Court also declared the violation of Article 5.1 as well as Articles 8.1 (right to a fair trial) and 25 (right to judicial protection) in conjunction with Article 1.1 (obligation to respect rights),174 with regard to the relatives of the victims.175 The representatives of the victims and their relatives also alleged a violation of Article 13 (freedom of thought and expression) of the American Convention, arguing that this provision, together with Articles 25 and 1.1, guarantees the right to truth176 of the relatives of the victims and of society as a whole. The Court rejected this interpretation, restating that “the right to truth is included in the right of the victim or of his or her relatives to obtain from the competent authorities the full clarification of the crime and the corresponding responsibilities, by means of investigation and judgment”.177

171 172 173

174 175

176 177

Ibid., paras. 95.70–95.83, 95.108–95.124, and 173–178. See infra 4.12. Ibid., paras. 111–153. Ibid., paras. 163. Even though three of the victims were minors, the Court, contradicting its precedent case law, did not declare any violation of Article 19 (rights of the child) of the American Convention. Ibid., paras. 189–193. In this case, as in the Masacre de Mapiripán case, supra note 153, the majority of the relatives of the victims has been forced to internally displace. However, contrary to the precedent, the Court did not find any violation of Article 22 of the American Convention (freedom of movement and circulation). See infra 4.11. IACHR, Case Masacre de Pueblo Bello, supra note 170, para. 219. For relevant precedents in this sense see, inter alia, IACHR, Case Blanco Romero and others, supra note 168, para. 95; Case Gómez Palomino, supra note 163, para. 78; and Case Masacre de Mapiripán, supra note 153, para. 297.

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Indeed recent developments regarding the right to truth at the international level declare the right to truth to be inalienable and autonomous.178 The Court ordered Colombia to undertake a number of measures of reparation,179 including the location and identification the human remains of the victims of the massacre. Once the bodies of the victims have been located and identified, Colombia must give them back to the families and cover all expenses for burial. The Court also ordered that all operations of exhumation must be carried out in accordance with the standards established by the United Nations Manual on the Effective Prevention and Investigation of Extra-judiciary, Arbitrary and Summary Executions (1991) as well as the Report of the Secretary General on human rights and forensic science released in accordance with Resolution 1992/24 of the Commission on Human Rights. The Court extended this obligation to all cases of exhumations of disappeared or extra-judiciary killed people. 2.3.V

Goiburú and others v. Paraguay

In 2006 the Court delivered its first judgment (Goiburú and others v. Paraguay) concerning four disappearances which occurred within the general context of the so-called Operación Condor.180 Operación Condor was the name given in the Seventies to the alliance of intelligence services depending on the governments of Argentina, Bolivia,

178

179

180

See United Nations, Economic and Social Council, Study on the Right to Truth, Report of the Office of the United Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006; Commission on Human Rights, Resolution on the Right to Truth 2005/66, 15 April 2005; and Article 24.2 of the 2007 Convention. The IACHR ordered Colombia: to pay pecuniary redress for material and moral damages (even though the Court did not find any specific violation of Article 19, it increased the amounts of money for victims that were minors when the facts occurred), to investigate the facts, identify judge and sanction all intellectual and material authors of the massacre; to provide, free of charge, all relatives of the victims medical and psychological treatment; to provide adequate housing and safety guarantees to all displaced relatives of the victims who decide to return to Pueblo Bello; to establish a public ceremony where Colombian authorities recognize the international responsibility of the State and issue an apology; to build a monument that commemorates the victims who died in the massacre; and to publish relevant abstracts of the judgment in the official bulletin as well as in a newspaper of national circulation. IACHR, Case Goiburú and others v. Paraguay, judgment of 22 September 2006, Ser. C No. 153.


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Brazil, Chile, Uruguay and Paraguay. It was established in order to conduct a coordinated struggle against those who were considered to be “subversive elements” according to the doctrine of national security. The governments of the mentioned countries decided to cooperate in trans-boundary security operations aimed at dismantling any form of opposition. The use of arbitrary detentions, tortures, extra-judiciary executions and disappearances constituted a systematic and widespread practice. Members of the intelligence services of the different countries cooperated with each other and were allowed to operate without boundary limitations. The case referred to the Court regarded Augustín Goiburú Giménez, Carlos José Mancuello Bareiro and the two brothers Rodolfo and Benjamín Ramírez Villalba, all Paraguayan nationals. Mr. Goiburú was a political activist and a well-known opponent of the then dictator General Alfredo Stroessner. According to information recently disclosed, Mr. Goiburú was suspected by Paraguayan intelligence services of being a terrorist leader who was planning to assassinate General Stroessner. Due to his political activities, he was the victim of several threats and left Paraguay for Argentina. Nonetheless, in 1969 he was arrested for the first time in Argentina and transferred to a detention centre in Paraguay, where he was tortured and illtreated for several months. He managed to escape and seek refuge in Chile, and from there he subsequently returned to Argentina in late 1970. On 9 February 1977, while he was leaving the hospital where he worked, he was apprehended by four men and taken to Paraguay. Several witnesses accounted for his presence in various Paraguayan detention centres and testified that he was tortured. Indeed, his fate and whereabouts remain unknown. Mr. Mancuello Bareiro was a Paraguayan citizen who also lived in Argentina. He was a student at the University of La Plata. On 25 November 1974, while he was crossing the border between Argentina and Paraguay, he was arrested together with his wife (who was pregnant at the time) and his 8-month-old daughter. They were all taken to a detention facility in Paraguay. The son of Mr. Mancuello Bareiro was born in captivity and was freed together with his mother and sister only in 1977. According to several witnesses Mr. Mancuello Bareiro, who was suspected by the Paraguayan intelligence service of being a terrorist, was subjected to severe tortures. Subsequent investigations disclosed that, on 21 September 1976, Mr. Mancuello Bareiro was extra-judiciary executed together with the two Ramírez Villalba brothers and another prisoner. His mortal remains have never been located nor identified.

182


Both of the Ramírez Villalba brothers were arrested on 25 November 1974: Benjamín while he was entering Paraguay from Argentina, where he used to live, and Rodolfo in the city of Asunción. They were both suspected of being terrorists. When Benjamín was abducted he was together with his partner, María Magdalena Galeano, who was also tortured and detained for about three years before being freed. Both the Ramírez Villalba brothers and Ms. Galeano were taken to the Departamento de Investigación in Asunción. According to witnesses and to documents that have recently been disclosed, the two brothers were held together with Mr. Mancuello Bareiro and they were also extra-judiciary executed on the same day. Their mortal remains have never been located nor identified. In spite of the opening of criminal proceedings in 1989 (after the fall of General Stroessner) for the disappearance of Mr. Goiburú, not one of the accused people, as of today, has ever been sentenced. General Stroessner and the then Minister of the Interior, Sabino Augusto Montanaro, were accused of direct participation in the crime. However, they had both left the country, one for Brazil and the other for Honduras. No request for extradition produced any result. General Alfredo Stroessner died in Brazil on 16 August 2006. Sabino Augusto Montanaro is currently living in Honduras, a country that has no extradition agreement with Paraguay. In 1999 five people were sentenced to twelve years and six months of imprisonment each for the murder of the Ramírez Villalba brothers. In 2000 one person was punished for the disappearance of Mr. Mancuello Barreiro. The government of Paraguay acknowledged its international responsibility for the four disappearances, amounting to a violation of Articles 4 (right to life), 5 (right to humane treatment), 7 (right to personal liberty), 8 (right to a fair trial) and 25 (right to judicial protection) in conjunction with Article 1.1 (obligation to respect rights) of the American Convention. The State did not acknowledge any violation of Article 5 with respect to the relatives of the material victims of the case. Nevertheless, the Court found such violation in its judgment. Besides expressing its appreciation for the positive attitude shown by the government in admitting its international responsibility, the Court deemed it appropriate to add some general considerations on the crime of enforced disappearance. According to the Court, the four cases of disappearance within the general context of Operación Condor are attributable to the highest representatives of the State who, far from using their power to protect their citizens, availed themselves of their position to violate the fundamen-


183

tal rights of a huge number of persons in several countries. In the view of the Court, Operación Condor could be defined as a systematic practice of State terrorism,181 corresponding to a crime against humanity. La responsabilidad internacional del Estado se ve agravada cuando la desaparición forma parte de un patrón sistemático o práctica aplicada o tolerada por el Estado. Se trata, en suma, de un delito de lesa humanidad que implica un craso abandono de los principios esenciales en que se fundamenta el sistema interamericano.182

The Court recalled its constant case law reiterating the continuing nature of the offence and the necessity to consider it in its entirety and complexity. It further added that: la prohibición de la desaparición forzada de personas y el correlativo deber de investigarlas y sancionar a sus responsables han alcanzado carácter de jus cogens.183

This statement can be considered a substantive achievement in keeping with the line that the Court has long been pursuing against the offence of enforced disappearance. It can be seen as a model for other international bodies as well. In the light of the general obligation of States to adopt all legislative measures necessary to guarantee the respect for human rights (Art. 2 of the American Convention), the Court evaluated also the compatibility of the provision of the 1998 Paraguayan Criminal Code184 codifying the offence

181

182

183

184

Ibid., paras. 66 and 72. See also attached concurring opinion of Judge S.G. Ramírez, paras. 16–30, and of Judge A.A. Cançado Trindade, paras. 9–33 and 50–53. IACHR, Case Goiburú and others, supra note 180, para. 82: “The international responsibility of the State is aggravated when the disappearance is part of a widespread and systematic practice applied or tolerated by the State. It constitutes a crime against humanity that represents a gross departure from the essential principles on which the Interamerican system is built” (unofficial translation by the authors). Ibid., para. 84: “The prohibition to carry out enforced disappearance and the corresponding obligation to investigate and punish those found to be responsible have acquired the character of jus cogens” (unofficial translation by the authors). See also paras. 93, 128, 130–132 and the concurring opinion of Judge A.A. Cançado Trindade, paras. 62–68. Article 236: Desaparición forzosa. 1º El que con fines políticos realizara los hechos punibles señalados en los artículos 105 [homicidio doloso], 111, inciso 3º [lesión calificada], 112 [lesión grave], 120 [coacción] y 124, inciso 2º [privación de libertad], para atemorizar a la población, será castigado con pena privativa de libertad no menor de cinco años. 2º El

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of enforced disappearance with international standards elaborated on the subject,185 finding that the provision did not fully comply with the latter.186 In order not to hinder the prevention and suppression of the offence, the Court ordered to Paraguay, as form of reparation, to modify the provision and to bring it into accordance with the mentioned international legal instruments.187 The Court also ordered Paraguay to pay pecuniary compensation to the relatives of the victims,188 to locate, identify and deliver to the relatives the mortal remains, to issue an apology in a public ceremony and to honour the memory of the victims, to build a monument dedicated to them, to provide free medical and psychological treatment to the relatives, to publish relevant abstracts of the judgment in the official gazette of the country and to establish a programme of education on human rights and international humanitarian law for public officials. Referring to the establishment in 2003 of a Paraguayan Truth Commission, the Court considered it a possible form of reparation for the specific case in hand and ordered Paraguay to ensure the continuance of the activity of such body as well as to guarantee the preservation of the so called Archivo del Terror, disclosed on 22 December 1992, which contains information on Operación Condor. Finally, the Court ordered Paraguay to investigate, judge and sanction those found to be responsible for the violations.189 As regards the issue of extradition, taking into account the trans-boundary nature of the case and the fact that two of the people accused of being responsible for the disappearances were residing abroad, the Court ordered Paraguay to:

185

186

187 188

189

funcionario que ocultara o no facilitara datos sobre el paradero de una persona o de un cadáver, será castigado con pena privativa de libertad de hasta cinco años o con multa. Esto se aplicará aun cuando careciera de validez legal su calidad de funcionario. The Court referred to the 1992 Declaration, the 1994 Interamerican Convention and the 2007 Convention. The Court made the same consideration on the criminal provision codifying the offence of torture. IACHR, Case Goiburú and others, supra note 180, para. 179. Such pecuniary compensation was increased for those who were minors when the disappearances took place, for the women who gave birth to their children in captivity and to the children born in captivity (ibid., paras. 160 b.iii, 160.b.v,vii and viii). The Court linked such obligation with the victim’s right to know the truth (ibid., para. 164).


185

remover todos los obstáculos, de facto y de jure, que mantengan la impunidad, y utilizar todos los medios disponibles para hacer expedita la investigación y los procedimientos respectivos y así evitar la repetición de hechos tan graves como los presentes. [. . .] En particular, [. . .], en los términos de la obligación general de garantía establecida en el artículo 1.1 de la Convención Americana, el Paraguay debe adoptar todas las medidas necesarias, de carácter judicial y diplomático, para juzgar y sancionar a todos los responsables de las violaciones cometidas, impulsando por todos los medios a su alcance las solicitudes de extradición que correspondan bajo las normas internas o de derecho internacional pertinentes. Asimismo, en función de la efectividad del mecanismo de garantía colectiva establecido bajo la Convención, [. . .], Paraguay, al igual que los Estados Partes en la Convención, deben colaborar entre sí para erradicar la impunidad de las violaciones cometidas en este caso mediante el juzgamiento y sanción de sus responsables y a colaborar de buena fe entre sí, ya sea mediante la extradición o el juzgamiento en su territorio de esos responsables.190

2.3.W

La Cantuta v. Peru

In 2006 the Court rendered another judgment on a collective case of disappearance that took place in 1992 during the Peruvian armed conflict: La Cantuta v. Peru.191 On 18 July 1992, at dawn, a group of soldiers of the Peruvian army together with members of the paramilitary group known as Grupo Colina burst in on the campus of the university La Cantuta and abducted 9 students and one professor. Allegedly, they were searching for terrorists hiding in the university campus. The relatives of the ten disappeared people

190

191

IACHR, Case Goiburú and others, supra note 181, paras. 165 and 166. On the issue of extradition, see also paras. 130–132: “To remove all the obstacles, de facto and de jure, that maintain impunity and to use all available means to accelerate the investigation and the corresponding proceedings thus avoiding the repetition of facts of such gravity as those of the present case. [. . .] In particular, [. . .] in the light of the general obligation of guarantee established under Article 1.1 of the American Convention, Paraguay must adopt all necessary measures, of judicial as well as of diplomatic nature, to judge and sanction all those responsible for the violations perpetrated, promoting by all available means the corresponding requests of extradition in accordance with domestic and international law. Moreover, for the mechanism of collective guarantee established under the Convention to be effective, [. . .], Paraguay, as well as other States Parties to the Convention, must cooperate to eradicate impunity for the violations perpetrated in the present case by judging and sanctioning those responsible and must cooperate in good faith, be it by extraditing those found to be responsible or by judging them in their territory” (unofficial translation by the authors). IACHR, Case La Cantuta v. Peru, judgment of 29 November 2006, Ser. C. No. 162.

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filed several habeas corpus and denounced the events to different authorities. However, no remedy proved to be effective and the highest authorities of the army denied that any operation had been ever carried out. Almost one year after the disappearance of the ten people two common graves were located. Exhumations led to the identification of two of the ten victims. Although other mortal remains and objects belonging to the other disappeared people were found at the site, no exhumation or process of identification was ever carried out. The Court therefore made a distinction between the two people who could be considered as victims of extra-judiciary execution and the other eight that were victims of enforced disappearance. In 1994 eight people were found guilty of homicide by a military tribunal. The relatives were not granted any access to the proceedings. No one was investigated or charged for intellectual responsibility for the crime. In 1995 two amnesty laws192 were adopted: this determined that all those who were awaiting trial in the La Cantuta case were immediately relieved of their charges and those who were already serving their sentences were immediately freed. It was only after the fall of Fujimori’s regime in 2001 that the Peruvian Supreme Court declared the inapplicability of the two amnesty laws. Accordingly, proceedings were opened in civil courts and Alberto Fujimori was formally charged as being the intellectual author of the extra-judiciary executions and disappearances of the nine students and the professor. Nonetheless, over five years after the event, no one has been sentenced. In 2006 Peruvian authorities requested the extradition of Alberto Fujimori from Chile. This request is under consideration by the Chilean Supreme Court. Peru partially acknowledged its international responsibility193 for the violation of Articles 3 (right to juridical personality), 4 (right to life), 5 (right to humane treatment, with regards to the material victims of the case), 7 (right to personal liberty) in conjunction with Article 1.1 (obligation to respect rights) of the American Convention. The Court, while appreciating

192 193

See supra note 94. The facts of the case have been analyzed also in the Final Report of the Peruvian Truth and Reconciliation Commission, 2003, tome VII, 2.22 Las ejecuciones extrajudiciales de universitarios de La Cantuta, p. 234. The IACHR based its final judgment to a large extent on the conclusions of the Peruvian Commission: IACHR, Case La Cantuta, supra note 191, paras. 86–98 and 223–225. On Truth and Reconciliation Commissions, see supra 1.8.


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the positive attitude shown by Peru, deemed it appropriate to further clarify certain aspects of the case.194 First, with regard to the violation of the right to juridical personality, the Court did not consider it appropriate to accept the public acknowledgment made by Peru as it could not see convincing evidence in this sense.195 Second, the Court found that Article 5 of the Convention was violated not only with regard to the material victims of the case – as explicitly recognized by the State – but also with regard to their relatives. The Court found also a violation of Articles 8 (right to a fair trial) and 25 (right to judicial protection) in connection with Article 1.1 of the Convention. Indeed, the Court declared that the trials before the military jurisdiction196 did not respect the international standards of the fair trial and that the application of the two mentioned amnesty laws to the case was contrary to the American Convention and, in particular, amounted to a violation of Article 2 (domestic legal effects).197 While expressing appreciation for the opening of trials before ordinary courts on the case La Cantuta in 2001, the Court found that Peru had exceeded any reasonable delay. The Court pointed out that the facts of La Cantuta were to be seen as part of a systematic practice of enforced disappearances and extra-judiciary executions perpetrated by State agents and paramilitary groups in the Nineties.198 This amounted to a crime against humanity and a gross violation of ius cogens. Along the same line of reasoning established under the Goiburú and others case,199 the Court referred to the issue of the pending request of extradition of Alberto Fujimori and noted that: Ante la naturaleza y gravedad de los hechos, más aún tratándose de un contexto de violación sistemática de derechos humanos, la necesidad de erradicar la impunidad se presenta ante la comunidad internacional como un deber de cooperación interestatal para estos efectos. El acceso a la justicia constituye una norma imperativa de Derecho Internacional y, como tal, genera obligaciones erga omnes para los Estados de adoptar las medidas que sean necesarias para no dejar en la impunidad esas violaciones, ya sea ejerciendo su jurisdicción para aplicar su derecho interno y el Derecho Internacional para juzgar y, en su caso, sancionar a los responsables de hechos de esa índole, o colaborando con

194 195 196 197 198 199

IACHR, Case La Cantuta, supra note 191, paras. 56–58. Ibid., paras. 117–121. Ibid., paras. 141–145. See infra 4.7. Of particular interest are the considerations expressed ibid., at paras. 162–189. In particular, ibid., paras. 80.4–80.7. See supra 2.3.V.

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otros Estados que lo hagan o procuren hacerlo. La Corte recuerda que, bajo el mecanismo de garantía colectiva establecido en la Convención Americana, en conjunto con las obligaciones internacionales regionales y universales en la materia, los Estados Parte en la Convención deben colaborar entre sí en ese sentido.200

While the respondent State in the La Cantuta case is Peru, the considerations expressed by the Court may have consequences also for Chile, which is indirectly called upon to grant the extradition of Alberto Fujimori. The Court ordered Peru to investigate, judge and sanction those found to be responsible for the violations, to pay pecuniary compensation to the relatives of the victims, to carry out the exhumations and to identify and deliver to the relatives of the eight disappeared people their mortal remains, to issue an apology in a public ceremony and honour the memory of the victims, to provide free medical and psychological treatment to the relatives of the victims, to publish relevant abstracts of the judgment in the official gazette of the country and to establish a programme of education on human rights and international humanitarian law for public officials.

2.4

The European Court of Human Rights

The respondent State in the first case of enforced disappearance, ruled in 1998 by the European Court of Human Rights, was Turkey. Since then complaints concerning the matter have significantly increased: the majority still regard Turkey, but some communications are beginning to be filed also against other European countries.201 In 2005 and 2006 the first judgments

200

201

IACHR, Case La Cantuta, supra note 191, para. 160. “Considering the nature and seriousness of the facts, in particular as part of a systematic violation of human rights, the need to eradicate impunity constitutes for the international community an obligation of interstate cooperation to that aim. The right to access to justice is an imperative rule of international law and, as such, sets for States’ obligations erga omnes to undertake all necessary measures not to let those violations go unpunished by exercising its jurisdiction to apply its domestic law and international law to judge and, as the case may be, to sanction those responsible for such facts, or by cooperating with other States that are able or willing to do so. The Court recalls that under the mechanism of collective guarantee established by the 1994 Interamerican Convention, and in the light of the international, regional and universal obligations on the subject, States Parties to the Convention must cooperate among them to this end” (unofficial translation by the authors). This overview will not take into account the cases Sarli v. Turkey, judgment of 22 May


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were rendered on cases of enforced disappearance which took place in the Russian Federation (Chechnya).202 The restricted geographical origin of complaints in cases of enforced disappearance is linked to some main areas of conflict. The first is the situation of extreme tension which has characterized the south-eastern territory of Turkey since the mid nineteen-eighties, which has become the theatre of frequent clashes between governmental security forces and the PKK movement (Workers’ Party from Kurdistan). Second, there is the continuous struggle for independence in Chechnya203 followed by its repression by the Russian government, and there are also the recent episodes of political violence in Ukraine. Another hotbed of tensions and grave human rights violations has historically been the northern part of Cyprus, which was occupied by the Turkish Army in 1974 and which remained under the effective control of the Turkish forces until the mid nineteen-eighties, where several disappearances have allegedly occurred. 2.4.A

Kurt v. Turkey

The case Kurt v. Turkey204 was decided by the Court in 1998. The son of the applicant disappeared in 1994 during an unacknowledged detention. She never saw him again. The Court found violations of Articles 3 (prohibition of torture), 5 (right to liberty and security) and 13 (right to an effective remedy) of the European Convention. Article 3 was found violated only

202

203

204

2001, Ifran Bilgin v. Turkey, judgment of 17 July 2001, and Erkek v. Turkey, judgment of 13 July 2004, where no new legal issues have been discussed by the Court. Nor will it take into account the case Kaya v. Turkey, judgment of 28 March 2000, that can be considered a case of extra-judiciary execution, as the dead bodies of the two material victims were located, identified and returned after their disappearance. The same can be said of the cases Koku v. Turkey, judgment of 31 August 2005, Gongadze v. Ukrain, judgment of 8 November 2005, Uçar v. Turkey, judgment of 11 April 2006, and Luluyev and others v. Russia, judgment of 9 November 2006. ECHR, Case Bazorkina v. Russia (infra 2.4.L) and Case Imakayeva v. Russia (infra 2.4.M). On 24 November 2005, the Court declared admissible the Case Magomadov and Magomadov v. Russia that also regards the disappearance of people in Chechnya (infra, 2.4.K). The case is currently pending. See, inter alia, Human Rights Watch, The Dirty War in Chechnya: Forced Disappearances, Torture and Summary Executions, March 2001. ECHR, Case Kurt v. Turkey, judgment of 25 May 1998.

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with regard to the applicant,205 as the emotional distress caused to a relative of a disappeared person amounts to inhuman and degrading treatment. As regards Article 5, the Court concluded that the Turkish authorities had failed to offer any credible and substantiated explanation for the whereabouts and fate of the applicant’s son after he was detained in his village and that no meaningful investigation had been conducted into the applicant’s insistence that he was in detention and that she was concerned for his life.206 As the authorities failed to discharge their responsibility to account for Mr. Kurt, it was to be accepted that he was held in unacknowledged detention in the complete absence of the safeguards contained in Article 5. The Court held that it was not necessary to decide on the complaint relating to Article 2 (right to life). The Court remarked that the applicant’s fear that her son may have died in unacknowledged custody at the hands of his captors could not be said to be without foundation.207 It also remarked that there was a sufficient factual and evidentiary basis to conclude that the applicant did see her son surrounded by soldiers and village guards and that he had not been seen since.208 However, the Court, requiring a standard of evidence “beyond reasonable doubt”, concluded that the applicant’s assertions failed to substantiate a claim based on violation of Article 2. Regrettably, the Court did not apply the criterion of the reversal of the burden of proof in the case of an alleged enforced disappearance, which had already been established by the Interamerican Court in 1989.209 Yet the concealment of the fate or whereabouts of the disappeared person is one of the constitutive elements of the offence of enforced disappearance. The complex nature of the offence calls for the application of special criteria in the field of evidence: not only the reversal of the burden of proof, but also the admission of circumstantial evidence, indirect testimonies and presumptions. To impose on the relatives of the victims the burden to prove what has concretely happened represents a sort of probatio diabolica. It goes without saying that, if a person has disappeared and his relatives are denouncing such an event, the latter are not in a position to prove anything about the fate and whereabouts of

205

206 207 208 209

This principle had already been established a few months before (January 1998) by the IACHR in its judgment on the case Blake, (supra 2.3.I). ECHR, Case Kurt, supra note 204, para. 128. Ibid., para. 106. Ibid., para. 99. IACHR, Case Velásquez Rodríguez, supra 2.3.A.


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their loved one. If they could, they would complain about a different violation, such as arbitrary killing, illegal deprivation of liberty or torture. Doubt and uncertainty about what has happened to the disappeared are the distinctive characteristics of the psychological state that enforced disappearances throw people into. When relatives of disappeared people resort to a court, be it national or international, they are, first of all, seeking the truth or, at least, help in trying to establish the truth, which is the duty of the State. To impose on the relatives the duty to prove “beyond reasonable doubt” what they have been unsuccessfully trying to discover for years, because of the obstructive attitude of the State, not only shows a lack of sensitivity, but also an excess of formalism which does not seem consistent with the function of a human rights court.210 By the same token, the Court also concluded that the applicant did not present any specific evidence that her son was indeed the victim of ill-treatment in breach of Article 3; nor did she adduce any evidence to substantiate her claim that an officially tolerated practice of disappearances and associated ill-treatment of detainees existed in Turkey.211 The Court found a violation of Article 3 towards the applicant herself, having regard to the circumstances of the case as well as to the fact that the complainant was the mother of the victim of a human rights violation and herself the victim of the authorities’ inactivity in the face of her anguish and distress. Moreover, the Court found a violation of Article 13 (right to an effective remedy) in view, in particular, of the lack of any meaningful investigation. Besides the decision itself, also some opinions by the judges show a limited understanding of the phenomenon of enforced disappearance. In his dissenting opinion Judge Pettiti insisted on the need for objective evidence and documents that could convince the judges beyond all reasonable doubt. He made the following remarks: Under the ordinary criminal law, disappearances may involve cases of running away, false imprisonment or abduction. Under public international law, a policy of systematic political disappearances may exist, as occurred in Brazil, Chile, Argentina, etc. In such cases, especially where they have been verified by the European Committee for the Prevention of Torture, it is for one or more member States

210 211

ECHR, Case Kurt, supra note 204, partly dissenting opinion of Judge F. Matscher. Ibid., para. 116.

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of the Council of Europe to lodge an application against the State concerned. It would be cowardly to avoid the problem by leaving the Court to decide on the basis of an application by an individual. An application by a State would occasion an international regional inquiry enabling the situation to be assessed objectively and thoroughly. I could have found that there had been a violation if the case had concerned instructions given by the army, gendarmerie or the police, both with regard to the security operations and to the verification of their implementation and follow up.212

However, while the establishment of an international regional inquiry enabling a practice of enforced disappearances to be assessed objectively could only constitute a positive development, this should never be considered an alternative to the duty of the Court to decide on applications filed by individuals alleging enforced disappearances. Judge Pettiti added that: The Kurt case occurred in a different context to the one that led to the decisions of the Interamerican Court.213

Yet the subsequent case law of the Court itself and the increasing number of reported cases of enforced disappearances in Turkey (Kurdistan) have contradicted this laconic statement. 2.4.B

Çakici v. Turkey

In the judgment of 8 July 1999 on the case Çakici v. Turkey214 the Court for the first time found a violation of the right to life of the victim of an enforced disappearance. The applicant brought the complaint on his own behalf and on behalf of his brother who had disappeared in 1993, after having been arrested during an operation carried out by gendarmes and village guards in South-Eastern Turkey. The applicant did not receive any official information regarding his brother who was considered by the Turkish authorities to be a dangerous member of the PKK.215 Only in May 1996, following the transmission of the government submissions to the European Commission on Human Rights, did the applicant learn that it was claimed by the authorities that

212 213 214 215

Ibid., dissenting opinion of Judge L.-E. Pettiti. Ibid. ECHR, Case Çakici v. Turkey, judgment of 8 July 1999. The applicant listened to accounts of severe tortures suffered by the brother, as reported by men who were detained for some days together with him.


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his brother had been killed in a clash between 17 and 19 February 1995, when he had been found dead with forty-five other militants. The identification appeared to be based solely on the claim that the identity card of the brother of the applicant was found on one of the bodies. No forensic analysis had been carried out. When referring the case to the Court, the Commission found violations of Articles 2 (right to life), 3 (prohibition of torture), 5 (right to liberty and security) and 13 (right to an effective remedy) of the European Convention. The Court found a violation of Articles 5 and 13 on the same grounds as the Commission. While considering the case under Article 2, the Court stated that: There is sufficient circumstantial evidence, based on concrete elements, on which it may be concluded beyond reasonable doubt that the victim died following his apprehension and detention by the security forces. This case has thus to be distinguished from the Kurt case, in which the Court examined the applicant’s complaints about the disappearance of her son under Article 5. In the Kurt case, although the applicant’s son had been taken into detention, no other elements of evidence existed as regarded his treatment or fate subsequent to that.216

While this conclusion can only be subscribed, the distinction made between the two cases in question is not fully convincing. The facts of the Çakici case do not appear substantively different from those of the Kurt case. Yet the “sufficient circumstantial evidence” the Court referred to in presuming the death in custody of Mr. Çakici was only the assumption that “very strong inferences may be drawn from the authorities’ claim that the identity card of the victim was found on the body of a dead terrorist”.217 In any case, the Çakici decision shows an evolution in the criteria of evaluation of the facts used by the Court and progress in understanding the peculiarities of cases of enforced disappearances, at least as regards the presumption of the death of the victim. The Court partially departed from the Kurt precedent also as regards the alleged violation of Article 3 (prohibition of torture). On the one hand, 216 217

ECHR, Case Çakici, supra note 214, para. 85. Ibid., para. 87: “As the victim must be presumed dead following an unacknowledged detention by security forces, the Court finds that the responsibility of the respondent State for his death is engaged. It observes that no explanation has been forthcoming from the authorities as to what occurred following his apprehension, nor any ground of justification relied on by the government in respect of any use of lethal force by their agents”.

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relying on the testimony of a witness who was detained for a number of days in the same room as the victim, the Court found a violation of Article 3 with regard to the material victim himself. On the other, with respect to the applicant (brother of the material victim), it remarked that: In the Kurt case, which concerned the disappearance of the applicant’s son during an unacknowledged detention, it found that the applicant had suffered a breach of Article 3 having regard to the particular circumstances of the case. It referred particularly to the fact that she was the mother of a victim of a serious human rights violation and herself the victim of the authorities’ complacency in the face of her anguish and distress. The Kurt case does not however establish any general principle that a family member of a “disappeared person” is thereby a victim of treatment contrary to Article 3. Whether a family member is such a victim will depend on the existence of special factors which give the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond –, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those inquiries. The Court would further emphasize that the essence of such a violation does not so much lie in the fact of the “disappearance” of the family member, but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct.218

The aim of this specification of the Court is understandable. However, a strict application of the stated criteria might lead to surprising exclusions: In the present case, the applicant was the brother of the disappeared person. Unlike the applicant in the Kurt case, he was not present when the security forces took his brother, as he lives with his own family in another town. It appears also that, while the applicant was involved in making various petitions and inquiries to the authorities, he did not bear the brunt of this task, his father taking the initiative in presenting the petition of 22 December 1993 to the National Security Court. Nor have any aggravating features arising from the response of the authorities been brought to the attention of the Court in this case. Consequently, the Court perceives no special features existing in this

218

Ibid., para. 98.


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case which would justify finding an additional violation of Article 3 of the Convention in relation to the applicant himself. Accordingly, there has been no breach of Article 3 as concerns the applicant in this case.219

With regard to this conclusion, more persuasive views were expressed by Judge Thomassen, joined by Judges Jungwiert and Fishbach, in their partly dissenting opinion: The government was responsible for the disappearance, torture and death of the applicant’s brother. The applicant was convinced, as may be regarded as reasonable in the circumstances, that his brother was tortured while he was in the custody of the security forces. Afterwards his brother disappeared. The government did not respond to the applicant’s requests for information and even denied that his brother was ever in custody. When the applicant’s brother was allegedly found dead, the government claimed after some time that he was killed in a clash. Nevertheless, they made no contact at all with the family as regards identification or arrangements for burial. All the efforts of the applicant to find out what happened to his brother were callously disregarded by the authorities, thus leaving him in uncertainty and pain for over five and a half years. In such a case, I do not doubt that the applicant felt that he was being subjected by the Turkish government to inhuman treatment. [. . .] In the judgment, the majority draws a distinction between the instant case and the Kurt case [. . .]. It is obvious that the pain of a mother who sees her son arrested and then has to live in uncertainty about his fate because of the acts and negligence of the authorities must be unbearable. However, a brother can also suffer deeply in face of the uncertainty of the fate of a sibling. [. . .] Nor do I find it persuasive that reliance is placed on the circumstance that, while the applicant was involved in making various petitions and enquiries to the authorities, he did not bear the brunt of this task [. . .]. As far as the latter is concerned, I am more impressed by the fact that from the moment of the disappearance of his brother the applicant was actively involved in submitting various petitions and enquiries to the authorities and that he made the application to our Court.220

To disregard the fact that the applicant, besides being a close relative of the victim, showed his emotional participation in the uncertain fate of his brother by presenting repeated requests for information to the national authorities, seems to be another sign of the initial difficulties of the European Court in understanding the essence of cases of enforced disappearance.

219 220

Ibid., para. 99. Ibid., partly dissenting opinion of Judge W. Thomassen, joined by Judges K. Jungwiert and M. Fishbach.

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In the Çakici case the Court also found breaches of Articles 5 and 13 of the Convention. Applying Article 41 of the European Convention (right to just satisfaction),221 the Court deemed it appropriate to award the sum of 39,000 pounds sterling to the applicant as covering both material and moral damages suffered by the material victim. 2.4.C Timurtas v. Turkey The case Timurtas v. Turkey,222 decided on 13 June 2000, is frequently quoted as a leading case within the case law of the European Court. The applicant alleged that his son, who was suspected of being one of the local leaders of the PKK, had been abducted from a village by governmental security forces in 1993 and, together with some other men, had been transferred to jail. Forty-five days after the abduction of his son, during which period the applicant received no official confirmation of the arrest nor was he informed of the reasons for the arrest, the location and the state of health of his son, some former detainees told him that his son was in fact in jail and was still alive. This was the last information the applicant was able to obtain, notwithstanding his subsequent continuous efforts, both through formal and informal channels, to locate his son. After six and a half years without any relevant news about his fate and whereabouts, the applicant considered that his son had probably died in custody and asked the European Court to hold Turkey responsible for the violation of Article 2 (right to life) of the European Convention as the authorities did not properly protect the right to life of the victim. The European Commission, when referring the case to the Court, expressed itself in favour of a declaration of “non violation” of Article 2, recalling the principles established by the Court in the Kurt case. According to the Commission’s reasoning, even though the likelihood of the alleged victim’s death in custody was extremely high, the lack of concrete evidence of his death, or at least of a state of illness or serious harm, meant that the case could not be dealt with from the perspective of the right to life.

221

222

Article 41, Just satisfaction: “If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party”. ECHR, Case Timurtas v. Turkey, 13 June 2000.


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The European Court disregarded the findings of the Commission. It considered that the matter of the lack of communication by governmental authorities about convincing information on the fate and whereabouts of a detainee, in the absence of the body of the latter, effectively raised an issue under Article 2 of the Convention. Such an issue had to be addressed according to the circumstances of the case and the existing evidence, verifying whether they could permit the reasonable presumption of the detainee’s death in custody. The Court considered that six and a half years without acknowledgement of the deprivation of liberty of the applicant’s son and the lack of any information as to his fate and whereabouts, together with the fact that he was last seen in the custody of government agents, were sufficient to presume that the man had died during the course of his illegal detention. This finding determined a violation of Article 2. However, this also prompted the Court to introduce a rather questionable standard: In this respect the period of time which has elapsed since the person was placed in detention, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time goes by without any news of the detained person, the greater the likelihood that he or she has died. The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person concerned is to be presumed dead. [. . .] In the first place, six and a half years have now elapsed since the victim was apprehended and detained – a period markedly longer than the four and a half years between the taking into detention of the applicants’ son and the Court’s judgment in the Kurt case.223

Instead of simply admitting that the criteria followed in the Kurt decision were inappropriate and needed to be changed, the Court embarked on a subtle discussion about the duration of the period during which information was lacking to allow the presumption of death of a disappeared person. If four and a half years are not enough and six and a half are, where should the line be drawn? Would five and a half be enough? It is evident that this is not a question of mathematics (“six years and a half is a period markedly longer than four and a half years”). Here the context is much more relevant than numbers. In countries where there is a systematic practice of enforced disappearances, victims seldom survive. In this context, what matters is not the duration of the period during which information about the victim is lacking,

223

ECHR, Case Timurtas, supra note 222, paras. 82 and 84.

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but the fact that the State, which should know the fate of the victim, denies this information to the relatives. As the Court added in another paragraph of the judgment, “in the general context of the situation in south-east Turkey in 1994, it can by no means be excluded that an unacknowledged detention of such persons would be life threatening”.224 This latter consideration alone should have been sufficient, together with the circumstantial evidence and witnesses, to presume the death of the victim, irrespective of the six and a half or of the four and a half years. Having found a violation of the right to life, the Court added that Article 1 (obligation to respect rights) together with Article 2 of the European Convention, entailed for States Parties, in the case of the death of an individual as result of the use of the force, the obligation to carry out official, effective, impartial and thorough investigations. In the Timurtas case, Turkey had not carried out any investigation concerning the disappearance or the death of the victim, ignoring complaints and notifications. According to the Court, the lack of investigation amounted to an autonomous profile of violation of Article 2. Turkey was also found responsible for a violation of Article 3 (prohibition of torture) with regard to the father of the victim, applying the criteria established under the Kurt case.225 Articles 5 (right to liberty and security) and 13 (right to an effective remedy) of the European Convention were also considered violated. Two subsequent cases of enforced disappearance occurred in southeastern Turkey were decided by the Court in 2000 and 2001 following the precedent set in the Timurtas case.226 2.4.D

Ciçek v. Turkey

In the judgment rendered in 2001 on the Ciçek case227 the Court, following the Timurtas precedent, found violations of Article 2 (right to life), as regards its substantive aspect, Article 3 (prohibition of torture) with regard to the applicant, as well as Articles 5 (right to liberty and security) and 13 (right to an effective remedy). The applicant alleged the disappearance of

224 225

226

227

Ibid., para. 85. Apparently, for the majority of the judges of the Court, the suffering of a father or a mother is more serious than the suffering of a brother (see the Case Çakici, supra note 214). ECHR, Case Tas v. Turkey, judgment of 14 November 2000; and Case Ismail Ertak v. Turkey, judgment of 9 May 2000. ECHR, Case Ciçek v. Turkey, judgment of 27 February 2001.


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her two sons and a grandson, who was sixteen years old at the time of the events (May 1994) and visually impaired. In his concurring opinion, Judge Maruste stressed that the Ciçek case differed from the Kurt case as the situation in the former could not be regarded as life-threatening. However, he added that: The disappearance of a person under the control of the authorities means that their (sic) life has not been properly protected.228

2.4.E

Cyprus v. Turkey

A case deserving specific consideration is Cyprus v. Turkey, decided by the Grand Chamber of the Court in 2001,229 when for the first time the subject of the occupation of the Northern part of Cyprus by Turkey was dealt with by the European Court under an interstate application. The complaints arose out of the Turkish military operations in Northern Cyprus in July and August 1974 and the continuing division of the territory of Cyprus. In the application filed in 1994 Cyprus claimed, inter alia, that about 1,491 Greek Cypriots resulted as still missing twenty years after the cessation of the hostilities. These people were last seen alive in Turkish custody and their fate had never been accounted for by the respondent State. In order to determine the existence of a violation of Article 2 (right to life) with respect to the 1,491 missing Greek Cypriots in the sense that they could be presumed dead, the principle established under the Timurtas case may be recalled. If “six and a half years are a period markedly longer than the four and a half of the Kurt case”, twenty-seven years are even more markedly longer. The Turkish government did not contend that these people had last been seen while in Turkish custody. The Commission, when referring the case to the Court, observed that those missing had disappeared in circumstances which were life-threatening, having regard, inter alia, to the fact that their disappearance had occurred at a time when there was clear evidence of large-scale killings as a result of acts of criminal behaviour outside the fighting zones. But the Court merely stated that the evidence was not sufficient:

228

229

Ibid., joint concurring opinion of Judge R. Maruste. In his partly concurring, partly dissenting opinion Judge F. Gölcüklü concluded that Article 2 had “certainly not been violated” because there was not evidence beyond all reasonable doubt that the applicant sons died while in custody. ECHR, Case Cyprus v. Turkey, judgment of 10 May 2001.

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The Court observes that the applicant government contend first and foremost that the missing persons must be presumed to be still alive unless there is clear evidence to the contrary [. . .]. Although the evidence adduced before the Commission confirms a very high incidence of military and civilian deaths during the military operations of July and August 1974, the Court reiterates that it cannot speculate as to whether any of the missing persons have in fact been killed by either the Turkish forces or Turkish-Cypriot paramilitaries into whose hands they may have fallen. It is true that the head of the “TRNC” [= Turkish Republic of Northern Cyprus], Mr. Denktaş, broadcasted a statement on 1 March 1996 admitting that the Turkish army had handed over Greek-Cypriot prisoners to Turkish-Cypriot fighters under Turkish command and that these prisoners had then been killed [. . .]. It is equally the case that, in February 1998, Professor Yalçin Küçük, who was a serving Turkish officer in 1974, asserted that the Turkish army had engaged in widespread killings of civilians [. . .]. Although all of these statements have given rise to undoubted concern, especially in the minds of the relatives of the missing persons, the Court considers that they are insufficient to establish the respondent State’s liability for the deaths of any of the missing persons. It is mere speculation that any of these persons were killed in the circumstances described in these accounts.230

Yet the Court left aside arithmetical criteria, and consistency with its previous decisions as well. If resort to arithmetical criteria is questionable in itself, the lack of consistency in applying such criteria is another and even more questionable aspect of the jurisprudence of the European Court on enforced disappearances. While the families of 1,491 persons after twenty-seven years still do not know the truth about what has happened to their loved ones, the Court failed to presume that Article 2 had been violated under its substantive aspect. The Court limited itself to declaring Article 2 of the Convention as continuously violated on account of the failure by the authorities of the respondent State to conduct an effective investigation aimed at clarifying the whereabouts and fate of Greek Cypriot people who had disappeared in life threatening circumstances. The Court thus confirmed that a distinction can be made between two aspects of Article 2 of the European Convention: it may be violated in a substantive way (in this sense evidence “beyond reasonable doubt” is usually required and sometimes arithmetical criteria are applied)

230

Ibid., para. 129.


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or in a procedural way (lack of investigation). This distinction characterizes all the subsequent judgments on cases of enforced disappearance.231 The Court found a continuing violation of Article 3 (prohibition of torture) with regard to the relatives of the victims,232 reiterating the criteria established in the Çakici case. Having regard to the painful uncertainty and anxiety suffered by the relatives of the disappeared which had lasted for so many years, the Court recalled that the military operation resulted in a considerable loss of life, large-scale arrests and detentions and enforced separation of families. The overall context must still be vivid in the minds of the relatives of persons whose fate has never been accounted for by the authorities. They endure the agony of not knowing whether family members were killed in the conflict or are still in detention or, if detained, have since died.233

The Court found that a continuing violation of Article 5 (right to liberty and security) could be established by virtue of the failure of the Turkish authorities to conduct an investigation into the whereabouts and the fate of the missing persons with regard to whom there was an arguable claim that they were in custody at the time they disappeared.234 But the Court also concluded that it had not been established that any of the missing persons were actually being detained by the Turkish-Cypriot authorities.235 The judgment leaves an unsolved doubt: as it is a matter of fact that 1,491 people disappeared when last seen in the custody of Turkish authorities in life-threatening circumstances, if they cannot be presumed to have died nor to be still illegally detained, what they can be presumed to be doing twenty-seven years after their disappearance? The question of just satisfaction (Art. 41) is still pending before the Grand Chamber.

231

232

233 234 235

See, in particular, ECHR, Case Türkoğlu v. Turkey, judgment of 17 March 2005; Case Tanis and others v. Turkey (infra 2.4.J); Case Togcu v. Turkey (infra 2.4.J); Case Özgen and others v. Turkey, 20 September 2005; Case Nesibe Haran v. Turkey (infra 2.4.J); Case Seker v. Turkey (infra 2.4.J); Case Bazorkina (infra 2.4.L); and Case Imakayeva (infra 2.4.M). The Court held it was not necessary to examine the possible violation of the same provision with regard to the material victims, as the applicant government did not pursue such a complaint (ECHR, Case Cyprus v. Turkey, supra note 229, para. 153). Ibid., para. 157. Ibid., para. 150. Ibid., para. 151.

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2.4.F Akdeniz and others v. Turkey A few days after the deviation of its case law made in the Cyprus case, the Court returned to the criteria set forth in the Timurtas case, in the judgment on the merits of the Akdeniz and others case.236 The applicants were close relatives of eleven people who disappeared in October 1993 following a massive operation carried out by the Turkish Security Forces around the Alaca village, in south-eastern Turkey. The analysis of the facts shows that the evidence submitted by the applicants was found more convincing than the opposite allegations by Turkey. The Court accepted the findings of the European Commission on Human Rights, which had conducted a fact-finding mission with the assistance of the parties, that: The conflict lay between the Government’s assertion, supported by the security force witnesses, that the missing persons had been kidnapped by the PKK dressed as soldiers and that the families in introducing the applications were acting as the pawns of the PKK, motivated by fear or a desire to obtain financial gain; and the assertion of the applicants and their families that their relatives had been detained by soldiers during the operation and last seen being taken away by helicopter. The credibility and reliability of the witnesses was the crucial issue. The Commission, relying on its Delegates, found that the applicants and the members of their family and the villager Mehmet Ýlbey were honest and convincing in the way they gave their evidence. Some were confused about details, in particular about dates, which was not unexpected due to the lapse of time. Some of the women witnesses and Sabri Avar were simple, unsophisticated individuals who were answering sincerely to the best of their ability. The Commission commented that all the applicants showed deep and abiding distress at the uncertainty which they had suffered after the disappearance of their relatives, several making appeals that they might at last be told the fate of their family members. Their evidence was strongly consistent with supporting documentary material, including petitions made by the families shortly after the events and the reliability of this considerable weight of evidence was confirmed as more witnesses were heard. In significant aspects, it was also substantiated by the villager witnesses brought forward by the Government. Conversely, the Commission Delegates received a negative impression from the gendarme witnesses, Ulvi Kartal and Ali Ergülmez. Their evidence, which included the denials that there was any operation in the area at the time, was shown to be unreliable when the General Yavuz Ertürk informed the Delegates that there was such an operation and indicated that both would have been aware. While General Ertürk impressed the Court as being a forceful and

236

ECHR, Case Akdeniz and others v. Turkey, judgment of 31 May 2001.


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competent witness, his evidence was given under circumstances which diminished its weight, as the Government refused to allow the applicant’s representatives to be present when he gave evidence to the Delegates. He showed reluctance to address the factual concerns of the Commission, avoiding precise answers. It found doubts arose as to the reliability of his evidence on the treatment of the villagers, the use of helicopters and the claim that no soldiers went into the villages or hamlets in the Alaca area. It examined the alleged points of inconsistency in the applicants’ versions of events put forward by the Government. It found that some differences in detail were explicable by the lapse of time and that they were not of such a nature as to undermine the applicants or the witnesses’ credibility. Their accounts were essentially consistent, credible and reliable.237

Accordingly, the Court found a violation of Article 2 (right to life) both under procedural and substantive aspects, Article 3 (prohibition of torture) with regard to the material victims of the case, Article 5 (right to liberty and security) and Article 13 (right to an effective remedy) of the Convention. As for the alleged violation of Article 3 with regard to the applicants, the Court concluded that only one person among all the applicants directly witnessed the detention of the eleven men who had disappeared, most of the other applicants being elsewhere during the operation. The applicants made approaches to the authorities asking about their relatives, and were not successful in obtaining any information. The Court did not dispute that the applicants suffered, and continue to suffer, distress as a result of the disappearance of their relatives. However, it was not satisfied that the Akdeniz and others case disclosed the special circumstances referred to in the Çakıcı case. Therefore, it did not find any violation of Article 3 with regard to the applicants themselves. In his partly dissenting opinion, Judge Gölcüklü did not concur on the finding a violation of Article 3 with regard to the material victims on the ground that the latter had been ill-treated while detained: In the file I could find no documentary evidence of this other than the applicants’ allegations. The Court said: “The evidence showed that they suffered not only from the cold, but from fear and anguish as to what might happen to them”. Are not fear and anguish of that kind the common lot of every prisoner? And can this be considered treatment falling within the scope of Article 3?238

237 238

Ibid., paras. 16–18. Ibid., joint partly dissenting opinion of Judge F. Gölcüklü, para. 2.

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According to the distinguished judge, it seems that there is no difference between the feeling of every common prisoner who benefits from the right provided to him by domestic legislation and international treaties and those of a disappeared person who perfectly knows that he is outside the protection of the law. Judge Gölcüklü added: As for the discomfort and inconvenience the victims may have suffered, it should be pointed out that members of the security forces have to live in conditions which are almost as harsh in that part of the country.239

Does this mean that members of the Turkish Security forces should be praised for their moderation in not applying to the European Court, while the relatives of the alleged victims of enforced disappearances are too demanding with their repeated claims? 2.4.G

Orhan v. Turkey

The Orhan v. Turkey240 case, decided on 18 June 2002, related to three people who had disappeared in 1995 and who had last been seen while being taken away to an unidentified place of detention by governmental authorities. The Court held that the victims, after eight years from their disappearance in life-threatening circumstances, could be presumed dead. Article 2 of the Convention was considered as violated under the double perspective of the presumption of death of the victims (substantive violation) and the lack of investigation by governmental authorities (procedural violation). The applicant, who was the father of one of the victims, and brother of the other two, was found to be a victim of inhuman and degrading treatment. Article 3 (prohibition of torture) was therefore declared as violated (indeed the Court did not find any breach of Article 3 with regard to the material victims), together with Articles 5 (right to liberty and security), 8 (right to respect for private and family life) and 13 (right to an effective remedy). In the Orhan case, the Court also found a violation of Article 34 (right to individual petition) with regard to the applicant and it recalled that:

239

240

Ibid. Moreover, according to Judge Gölcüklü, the sums awarded to the applicants were more than excessive. In fact, the sums ranged from 12,000 to 80,000 GBP as pecuniary damage. 2,500 GBP were also awarded to each applicant for non-pecuniary damage. ECHR, Case Orhan v. Turkey, judgment of 18 June 2002.


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It is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. [. . .] In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy. The fact that the individual actually managed to pursue his application does not prevent an issue arising under Article 34: should the Government’s action make it more difficult for the individual to exercise his right of petition, this amounts to “hindering” his rights under Article 34. Furthermore, whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of former Article 34 must be determined in the light of the particular circumstances of the case. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities. In previous cases, the Court had regard to the vulnerable position of applicant villagers and the reality that in south-east Turkey complaints against the authorities might well give rise to a legitimate fear of reprisals, and it has found that the questioning of applicants about their applications to the Commission amounted to a form of illicit and unacceptable pressure, which hindered the exercise of the right of individual petition in breach of former Article 25 of the Convention. [. . .] The Court would emphasise that it is inappropriate for the authorities of a respondent State to enter into direct contact with an applicant even on the pretext of verifying whether an applicant had, in fact, signed a form of authority in favour of legal representatives before the former Commission or this Court. Even if a Government has reason to believe that in a particular case the right of individual petition is being abused, the appropriate course for that Government is to alert the Court and inform it of their misgivings. To proceed as the Government did in the present case was, the Court finds, reasonably interpreted by the applicant as an attempt to intimidate him. In addition, the Court finds that an attempt was made by the authorities to cast doubt on the validity of the present application and thereby on the credibility of the applicant. These actions cannot but be interpreted as a bid to try to frustrate the applicant’s successful pursuance of his claims, which also constitutes a negation of the very essence of the right of individual petition.241

Moreover, the Court declared a violation of Article 38.1 (obligation not to hinder the proceedings) because of Turkish delays and omissions in response to the Commission’s and the Court’s requests for relevant documents, information and witnesses.

241

Ibid., paras. 406–410.

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In his dissenting opinion Judge Gölcüklü stated that the majority gratuitously presupposed that the material victims, after having been in the hands of the security forces, continued to be detained thereafter. This opinion is far from being convincing, as it would be practically impossible to find any violations in cases of enforced disappearance, if the applicants were required to prove beyond any reasonable doubt not only the detention of the victims, but also the continuation of the latter. Rather than burdening the relatives of the victims with almost insurmountable obstacles, more attention should be devoted to the obstructive behaviour of the State authorities that bear the burden of proof in cases of alleged disappearance. Judge Gölcüklü added that If it has not been established that the Orhans were detained by gendarmes after they were seen for the last time with soldiers, how can one claim – as the majority did – that it must be presumed that they died as a result of unacknowledged detention by security forces, and thus conclude that there has been a violation of Article 2. Reasoning of that kind defies all elementary logic, in my opinion, and is therefore unacceptable to me.242

To follow the criterion of “elementary logic” preferred by Judge Gölcüklü, one may wonder whether his conclusions would have been radically different if by chance, the Orhans had been seen for the last time with “gendarmes” and not with “soldiers”. Finally, Judge Gölcüklü concluded that: In short, this case concerns nothing more than an unacknowledged disappearance, to which the only applicable provision is Article 5 of the Convention according to the Kurt judgment of 25 May 1998, but not Article 2 as the majority considered.243

The approach of Judge Gölcüklü, who, in this case, sees “nothing more than an unacknowledged disappearance”, can hardly be shared to say the least. What can be worse than an unacknowledged disappearance, especially in certain areas of the world? 2.4.H

Tashin Acar v. Turkey

On the case Tashin Acar v. Turkey,244 the Grand Chamber rendered two judgments, respectively on 6 May 2003 (preliminary issue) and on 8 April 2004 (merits). In August 1994 Mehmet Salim Acar, the brother of the applicant, 242 243 244

Ibid., joint dissenting opinion of Judge F. Gölcüklü, para. 5. Ibid., para. 6. ECHR, Case Tashin Acar v. Turkey, judgment of 6 May 2003.


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was abducted while working as a farmer by two armed men in plain clothes who claimed to be policemen. Since then the family, notwithstanding several attempts to establish the fate and whereabouts of the man who had disappeared, never saw him again. The case had originally been struck off the list by the II Chamber of the Court on the basis of a unilateral declaration made by the Turkish government under Article 37 of the Convention. According to that declaration, the government of the Republic of Turkey offered to pay ex gratia the amount of 70,000 pounds sterling to the applicant. It was added that: The government regret the occurrence of the actions which have led to the bringing of the present application, in particular the disappearance of the applicant’s brother and the anguish caused to his family. It is accepted that unrecorded deprivations of liberty and insufficient investigations into allegations of disappearance constitute violations of Articles 2, 5 and 13 of the Convention. The government undertake to issue appropriate instructions and adopt all necessary measures with a view to ensuring that all deprivations of liberty are fully and accurately recorded by the authorities and that effective investigations into alleged disappearances are carried out in accordance with their obligations under the Convention.245

The applicant asked the Grand Chamber of the Court to reject the government’s request to strike the application off on the basis of the government’s unilateral declaration. He argued, inter alia, that the terms of the declaration were unsatisfactory in that it made no admission of any violation of the Convention alleged in the application; that it was not acknowledged that his brother had been abducted and detained by State agents and was to be presumed dead, in violation of Article 2 of the Convention; that it offered no undertaking to conduct an investigation into the circumstances of his brother’s disappearance, which was what was required, but only provided a generic undertaking concerning investigations into alleged disappearances; that the payment of compensation was referred to as ex gratia; and that it contained no acknowledgement that the unlawful abduction and “disappearance” of his brother undermined and was inconsistent with the prohibition of torture and inhuman and degrading treatment under Article 3 of the Convention. Yet it is really surprising that the Chamber had actually accepted such a vague, unilateral statement which diminishes the consequences of a case of enforced disappearance to a mere ex gratia payment.

245

Ibid., para. 60.

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The Grand Chamber decided to pursue the examinations on the merits of the case and stressed that a unilateral declaration, to be admissible, should at the very least contain an admission to the effect that investigations on the alleged disappearance fell short of what is necessary under the European Convention, combined with an undertaking by the respondent government to conduct, under the supervision of the Committee of Ministers in the context of the latter’s duties under Article 46 of the Convention, an investigation that is in full compliance with the requirements of the Convention as defined by the Court in previous similar cases. The Turkish declaration contained no such admission nor any such undertaking. In a concurring opinion joint to the judgment, Judges Bratza, Tulkens and Vajic noted that: In our opinion the procedure of striking out – on the basis of a unilateral declaration by the respondent government even though the applicant wishes the examination of the merits of his case to be continued – must remain an exceptional one and, in any event, cannot be used to circumvent the applicant’s opposition to a friendly settlement.246

In the judgment on the merits the Court found violations of Articles 2, 3, 5 (right liberty and security) and 13 (right to an effective remedy). 2.4.I

Tekdag v. Turkey and Ipek v. Turkey

The case law of the European Court on the issue of enforced disappearances records two other contradictory judgments. In the case Tekdag v. Turkey, decided on 15 January 2004,247 the applicant complained about the disappearance of her husband, which took place in 1994 when he was allegedly last seen in the custody of governmental agents. The Court drew attention to its previous findings in similar cases that in 1993, in south-east Turkey, there were rumours that contra-guerrilla elements were involved in targeting people suspected of supporting the PKK. It was further declared undisputed that there were a significant number of killings which became known as the “unknown perpetrator killing” phenomenon and which included prominent Kurdish figures and journalists. The Court considered that that context lent some support to the applicant’s allegations. However, the required evidentiary standard “beyond reasonable doubt”

246 247

Ibid., concurring opinion of Judges N. Bratza, F. Tulkens, N. Vajic. ECHR, Case Tekdag v. Turkey, judgment of 15 January 2004.


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was not met in the Tekdag case as the applicant could not present any eyewitness to the alleged incidents. A violation of Article 2 (right to life) was found not as regards its substantive content, but only as regards its procedural aspects, on account of the national authorities’ failure to carry out an adequate and effective investigation into the circumstances surrounding the death of the victim. Article 3 (prohibition of torture) was not found violated, either with regard to the material victim or to the applicant. Apparently, in the view of the Court, the lack of any effective and adequate investigation about a disappeared person does not constitute an inhuman or degrading treatment for his wife. One month after the Tekdag case the Court rendered the judgment in the Ipek v. Turkey case,248 recognizing violations of Article 2 (the sons of the applicant, who had disappeared nine and half years earlier, were presumed to be dead and a failure to investigate was found) and of Article 3 (with regard to the applicant). It is difficult to see consistency between the two reported judgments. 2.4.J Recent cases against Turkey In some recent judgments on cases of enforced disappearance relating to Turkey,249 the European Court substantially confirmed its rather ambiguous approach to the issue. Article 2 is always analyzed under the double perspective of substantive and procedural violations. As far as the “substantive” violation of the right to life is concerned, the Court seems to require evidence beyond reasonable doubt, without applying the reversal of the burden of proof which would impose on the respondent State the obligation to demonstrate that the disappeared person has not died. However, this is not always true, as in certain cases where circumstances seemed similar to others, the Court reached diverging conclusions.250 With regard to the procedural aspects, the Court was consistent in finding a violation of Article 2 of the European Convention whenever the specific circumstances showed that the State did not properly investigate the case.

248 249

250

ECHR, Case Ipek v. Turkey, judgment of 17 February 2004. ECHR, Case Tanis and others v. Turkey, judgment of 2 August 2005; Case Togcu v. Turkey, judgment of 31 August 2005; Case Nesibe Haran v. Turkey, judgment of 6 October 2005; and Case Seker v. Turkey, judgment of 21 February 2006. ECHR, Case Neisbe Haran, supra note 249, paras. 64–69.

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The impression of divergent conclusions exists also as regards the obligations of State Parties towards relatives of victims of enforced disappearances. Only in some cases did the Court find a violation of Article 3 (prohibition of torture). In others it did not reach such a conclusion. For instance, in the case Nesibe Haran v. Turkey, the Court concluded that: while the uncertainty and apprehension suffered by the applicant over a prolonged and continuing period caused her anguish and suffering, it cannot be held, in the circumstances of the present case and in light of the case file, that her suffering reached a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human-rights violation.251

Indeed, one may wonder how the Court evaluates the dimension and the character of the suffering of an applicant, and when it finds it sufficient to declare a violation of Article 3 of the European Convention. In the most recent decisions the Court, rather than focussing on the proximity of the family tie between the material victim and the applicant, stressed out that: The essence of such a violation does not so much lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention.252

In almost all of the recent cases of enforced disappearance, the Court has found a violation of Article 13 (right to an effective remedy) of the Convention. Interestingly enough, in recent Turkish cases where the respondent State failed to secure the attendance of witnesses at a hearing or to provide the Court with all the required documents, a violation of Article 38.1 (obligation not to hinder the proceedings) has been found.253 Finally, the remark that the Court has too restrictive an approach in evaluating compensation for the loss of human life cannot but be supported. In 2005 Mr. Pourgourides, the Rapporteur on Enforced Disappearances for the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe concluded that:

251 252 253

Ibid., para. 84. This principle had already been established in the Çakici case (supra note 214). ECHR, Case Tanis and others, supra note 249; Case Ipek, supra note 248; and Case Togcu, supra note 249.


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Whilst it is of course impossible to “compensate” the loss of a close relative with money, an appropriate award is also a mixture of the seriousness of the violation. In this context, I wish to make the point that the amounts awarded in this respect by the European Court of Human Rights are far too low in my opinion. Sums only in the thousands of euros for the loss of children, husbands or fathers are in my view an insult to the victims and risk undermining the authority of the Court in the eyes of the perpetrators and the governments responsible for such deeds.254

The Rapporteur concluded that: The approach followed by the European Court of Human Rights understands enforced disappearance only as an aggravated form of arbitrary detention, which does not reflect the extremely serious nature of this human rights violation.255

2.4.K

Magomadov and Magomadov v. Russia

In November 2005 the Court declared the case Magomadov and Magomadov v. Russia admissible.256 The applicants, Yakub and Ayub Adamovich Magomadov, are brothers. They alleged the disappearance of their third brother, Ayubkhan Magomadov. On 2 October 2000 the house of the three brothers, located in the village of Kurchaloy in Chechnya, was searched by a unit of the Federal Security Service. No documents authorizing the search were presented. On that occasion Ayubkhan was arrested by men in military uniforms who subsequently drove him away. He has not been seen since. His relatives actively searched for him, but received little substantive information in reply from the official authorities. The Head of the Local Criminal Police stated that Mr. Magomadov had been arrested under suspicion of having committed a serious crime and that he was released on the subsequent day. Nevertheless, the name of the man who had disappeared did not appear in the local registry of the detainees.

254

255 256

Council of Europe, Parliamentary Assembly, Enforced Disappearances, Report to the Committee on Legal Affairs and Human Rights, Rapporteur Mr. Christos Pourgourides, Doc. 10679, 19 September 2005, para. 66 (emphasis added). Hereinafter referred to as “Report by Mr. Pourgourides”. The opposite view was previously expressed by Judge Gölcüklü, see supra 2.4.F and note 239. Ibid., para. 48. ECHR, Case Magomadov and Magomadov v. Russia, decision as to the admissibility of 24 November 2005.

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After the complaint concerning the case of Mr. Magomadov had already been filed with the European Court, the applicants’ representatives informed the Court that also the first applicant (Yakub Magomadov) had disappeared. As alleged, Yakub Magomadov had contacted his family for the last time on 19 April 2004 while he was in Moscow. Ten days later a group of people in camouflage who were allegedly looking for the applicant paid a visit to his relatives in their house in Chechnya. After the intervention of other security officers the men in camouflage presented identity documents of the Federal Security Service and, before leaving, instructed one of the brothers of the applicant to come to their local office. Once there, he was told that a criminal case had been opened against his brother. No further details were given. Almost one month later a man alleging to be a member of the Security Service of the President of Chechnya brought a note to the applicant’s mother’s house. The note was allegedly written by Yakub Magomadov and his family interpreted it as saying that Yakub was at that time detained at the main Russian military base in Chechnya (Khankala). Nevertheless, the name of Yakub Magomadov does not appear in the register of detainees. In June 2004 the Russian Human Rights Commissionaire stated that it was not the first occurrence of a disappearance of an applicant before the European Court. Accordingly, the applicant’s representatives referred to Article 34 (right to individual application)257 of the European Convention and linked Yakub’s arrest with his application to the European Court in connection with his brother’s disappearance. The European Court concluded that it could find no grounds for declaring inadmissible the complaints of the applicants’ under Articles 2 (right to life), 3 (prohibition of torture, both with regard to the material victims and to their relatives), 5 (right to liberty and security) and 34. 2.4.L

Bazorkina v. Russia

In 2006 the European Court delivered its first judgment on the merits of a case of disappearance which occurred in the Russian Federation (Chechnya).258

257

258

Article 34: “The Court may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right”. ECHR, Case Bazorkina v. Russia, judgment of 27 July 2006.


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The applicant alleged that her son disappeared after being apprehended by Russian military servicemen in February 2000. Her son, Khadzhi-Murat Aslanbekovic Yandyiev, left the University of Moskow in August 1999, before completing his studies. One of his classmates alleged that he had left for Grozny, Chechnya. His mother has never heard from him since. However, on 2 February 2000 she saw him in a news broadcast about the occupation by the Russian army of a Chechen Hospital. In the videorecording (which proved to be authentic), her son was being interrogated by a Russian officer who asked him several questions and then ordered his men to: “Take him away, finish him off there”. Mr. Yandyiev has never been seen again. His mother actively searched for him, submitting several complaints to the Russian authorities but receiving very little substantive information. In November 2005, after several requests by the European Court, the Russian authorities agreed to disclose all the documents concerning the investigation of Mr. Yandyiev’s disappearance. The Court, analyzing the alleged violation of Article 2 (right to life) by Russia, recalled the issue of the burden of the proof noting that, in the case of a substantive violation of the mentioned provision, the standard required is “beyond reasonable doubt”. It remarked that Russia had never denied that Mr. Yandyiev had last been seen alive while he was in custody. Furthermore, he was undoubtedly in life-threatening circumstances the last time that he was seen alive, especially for a person deprived of his freedom, although it is not certain whether the order given by the Russian official was taken seriously by his men or not. The government did not submit any plausible explanation as to what exactly happened to Mr. Yandyiev. For these reasons, and taking into account that for over six years no information had come to light concerning Mr. Yandiyev’s whereabouts, the Court declared itself satisfied that he must be presumed dead following unacknowledged detention. While not departing from its already established requirement of evidence “beyond reasonable doubt”, the Court in fact applied a presumption of death in a case where the death of the victim seems more “likely” than “beyond reasonable doubt”.259 It may be asked why the Court fails to take the final step by officially setting aside such an excessively restrictive requirement which in fact is not always applied by the Court itself. This would allow the Court to fully abide by the concept of the reversal of the burden of proof. 259

See also Cases Çakici and Orhan, supra 2.4.B and 2.4.G.

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Article 2 was declared to have been violated also from the procedural perspective, as the investigation carried out exceeded the acceptable limitations on efficiency that could be tolerated in dealing with such a serious crime. The Court further declared the violation of Article 3 (prohibition of torture) with regard to the applicant, while it considered that there was insufficient evidence to declare a violation with regard to the material victim. In the Bazorkina case, violations of Articles 5 (right to liberty and security) and 13 (right to an effective remedy) were also declared, while the Court did not consider it necessary to separately examine complaints under Articles 6 (right to fair trial) and 8 (right to respect for private and family life) of the European Convention. Moreover the applicant, referring to the refusal of the Russian government to submit documents from the investigation file upon numerous requests by the Court, claimed a violation of Articles 34 (right to individual application) and 38 (obligation not to hinder the proceedings). Allegedly, the practice of denying the Court access to requested documents, notably criminal investigation files, concerned a large number of cases (about 20) communicated by the Court to the Russian government.260 In the Bazorkina case the Court did not find such violations, as the delays in submitting documents to the Court could be deemed as reasonable and no undue pressure had been put on the applicant. 2.4.M Imakayeva v. Russia On 9 November 2006 the Court delivered a judgment on another case of disappearance which occurred in Chechnya: Imakayeva v. Russia.261 The applicant, Marzet Imakayeva, alleged that first her son, Said-Khuseyn Imaayev, and then her husband, Said-Magomed Imakayev, disappeared following their apprehension by Russian servicemen in Chechnya. On 17 December 2000 Said-Khuseyn Imakayev drove to the market in the village of Starye Atagi. In the afternoon on the same day neighbours informed the applicant that they had seen her son being detained by Russian servicemen at a roadblock between the villages of Starye Atagi and Novye Atagi. The applicant had had no news of her son since, even though she and her relatives had immediately started looking for him and collected

260 261

ECHR, Case Bazorkina, supra note 258, para. 167. ECHR, Case Imakayeva v. Russia, 9 November 2006.


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several statements from the witnesses who had seen her son being detained. Starting on the day after Said-Khuseyn’s disappearance, his mother and her husband applied on numerous occasions to prosecutors of different levels, to the Ministry of the Interior, to the administrative authorities in Chechnya and to the Russian President’s Special Envoy to the Chechen Republic for Rights and Freedoms. In January 2001 the District Prosecutor’s Office initiated criminal proceedings with regard to the kidnapping262 of Said-Khuseyn. The investigation was closed and reopened several times. However, it did not lead to any significant result: the fate and whereabouts of Said-Khuseyn remain unknown and no one has been formally summoned for his disappearance, despite the existence of several witnesses. Ms. Imakayeva’s access to the documents collected by the authorities during the investigation and to the corresponding results was severely hindered. On 2 June 2002, while the applicant and her husband were in their house, they were woken up by loud noise in the courtyard. The neighbours testified to the presence of several military vehicles. About 20 servicemen in military camouflage uniforms came into the Imakayev’s house and searched the house without showing any warrants or providing explanations. The applicant’s husband was held against the wall during the search and afterwards he was forced into one of the military vehicles. After the visit to the Imakayev’s house, the soldiers went to other places in the village and detained four other men.263 Since then the applicant has continued to search for her husband. She has had no news of him nor has there been any news of the other four men detained on the same night in the village. On 2 July 2002 the applicant was visited at her home by a senior investigator from the Ministry of the Interior who questioned her about the circumstances of her husband’s detention and confirmed that the investigation was linked to her application to the European Court. Initially the domestic authorities declared that the applicant’s husband had not been detained by the law-enforcement agencies and that there were no grounds for such detention. The Russian government, questioned by the European Court on the circumstances of Said-Magomed’s disappearance,

262

263

Article 126.2 of the Russian Criminal Code. This code does not include the offence of enforced disappearance. The case of these four men who disappeared has also been filed with the ECHR (applications No. 29133/03) and is awaiting judgment (Utsayeva and others v. Russia).

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reported that the services present in Chechnya had not conducted any special operations in the village of Novye Atagi on 2 June 2002 and that the applicant’s husband was not listed among the detainees held by those services. However, the applicant obtained a testimony from a Russian General who admitted that 27 people had been detained in June and that 15 of them had been “eliminated”. At the domestic level, on 9 July 2004 the criminal investigation into the applicant’s husband’s abduction was closed because “no criminal offence had been committed”. On the same date, the Main Military Prosecutor stated that the investigation had established that on 2 June 2002 military servicemen, acting in accordance with section 13 of the Suppression of Terrorism Act, had carried out an operative-combat action and detained Said-Magomed Imakayev on suspicion of involvement in one of the bandit groups active in the district. Following an inquiry, his involvement with illegal armed groups was not established and he was simultaneously transferred to the head of the Shali administration to be returned to his home. Allegedly, Imakayev’s further absence from his place of residence was not connected to his detention by military servicemen. The applicant’s representatives asked the Main Military Prosecutor to inform them on what investigative measures had been taken prior to the closure of the investigation. However, the Prosecutor refused to provide them with copies of the relevant documents. The Russian government, asked by the European Court to submit information on the investigation, confirmed this last version of the facts and explained that, in accordance with Section 15 of the Suppression of Terrorism Act, no information about the special forces servicemen who had taken part in the counter-terrorist operations could be divulged. The Court repeatedly requested the Russian government to provide it with copies of the relevant documents and a detailed outline of the proceedings. The government rejected the request. It informed the Court that certain documents had been classified as secret in accordance with Section 5.4 of the Federal State Secrets Act, because they contained data received as a result of undercover operative measures. When delivering its judgment, the European Court recalled that: Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, such as in cases where persons are under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation. These principles apply also to cases in which, although it has not


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been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she entered a place under their control and has not been seen since.264

Referring to the Imakayeva case the Court noted that, while the applicant presented very serious allegations, supported by the evidence collected by her, the government refused to disclose any documents which could shed light on the fate of the applicant’s son and husband and did not present any plausible explanation concerning their alleged detention or subsequent fate. In view of this patent denial of cooperation, the Court found itself obliged to take a decision on the facts of the case with the materials available. Accordingly, as the Russian government did not deny that the applicant’s son had been abducted by unknown armed men and that there were several witnesses who declared that those men were members of the Russian special security forces, the Court found that it could draw inferences from the government’s conduct to establish to the requisite standard of proof that Said-Khuseyn was last seen in the hands of unknown military or security personnel. As for the disappearance of Said-Magomed, the Court also concluded that the respondent government’s explanations were wholly insufficient to justify the withholding of the key information specifically sought by the Court. Therefore, the Court found it had established to the standard of proof “beyond reasonable doubt” that Said-Magomed Imakayev was detained by security forces. To determine whether there had been a substantive violation of Article 2 with regard to the two material victims, the Court recalled the precedent set in the Timurtas case, concluding that: There has been no news of (Said-Khuseyn) since that date, which is more than five and a half years ago. The Court also notes the applicant’s reference to the available information about the phenomenon of “disappearances” in Chechnya and agrees that, in the context of the conflict in Chechnya, when a person is detained by unidentified servicemen without any subsequent acknowledgement of detention, this can be regarded as life-threatening. Furthermore, the government failed to provide any explanation of Said-Khuseyn Imakayev’s disappearance and the official investigation into his kidnapping, dragging on for more than five years, produced no known results. For the above reasons the Court considers that Said-Khuseyn Imakayev must be presumed dead.265

264 265

ECHR, Case Imakayeva, supra note 261, paras. 114 and 115. Ibid., paras. 141 and 142.

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The Court found a violation of Article 2 both under the substantive and procedural aspects for the disappearance of Said-Khuseyn. It reached the same conclusions for the disappearance of Said-Magomed.266 The conclusions by the Court result from the application of the reversal of the burden of the proof and consideration of circumstantial evidence in cases of enforced disappearance. If the government manifestly does not cooperate with the Court, a presumption “beyond any reasonable doubt” may be inferred that the claim of the victim is well founded. However, it is difficult to see consistency with a number of more questionable judgments rendered by the Court on almost identical cases concerning Turkey.267 The Court also found a violation of Article 3 (prohibition of torture) with regard to the applicant: The Court’s above findings under the procedural aspects of Article 2 are also relevant here. As an additional element contributing to the applicant’s sufferings, the Court notes the authorities’ unjustified denial to the applicant of access to the documents of the criminal investigation files, which could shed light on the fate of her relatives, either directly or through the proceeding in this Court. [. . .] The manner in which her complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3.268

Moreover, the Court found a violation of Article 5 (right to liberty and security) with respect to both of the material victims and of Article 13 (right to an effective remedy) in connection with Articles 2 and 3 of the Convention with regard to the two material victims. Considering that the search and seizure measures were implemented without any authorization or safeguards, the Court concluded that such interference was not “in accordance with the law” and amounted to a violation of Article 8 (right to respect for private and family life).

266

267

268

As for the disappearance of Said-Magomed, the Court grounded its conclusions on the fact that the victim was detained in circumstances that could be described as lifethreatening and that the absence of news about the victim lasted almost four years. The Court found that the behaviour of the prosecutor’s office and of other law-enforcement authorities in the face of the applicant’s well-established complaints gave a strong presumption of at least acquiescence in the situation and raised serious doubts as to the objectivity of the investigation. See, inter alia, ECHR, Case Cyprus v. Turkey, supra note 229; and Case Neisbe Haran, supra note 231. ECHR, Case Imakayeva, supra note 261, paras. 165 and 166.


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As regards the government’s failure to submit the documents requested by the Court (criminal investigation files), the applicant alleged a violation of Article 34, as regards the obligation of the Parties not to hinder in any way the effective exercise of the right of application, and of Article 38,269 as regards the obligation of the State Party to furnish all necessary facilities during the examination of admissible applications. The Court recalled that: It has on several occasions requested the Russian government to submit copies of the investigation files opened into the disappearance of the applicant’s relatives. The evidence contained in both files was regarded by the Court as crucial for the establishment of facts in the present case. It also recalls that it found the reasons cited by government for their refusal to disclose the documents requested as insufficient. Referring to the importance of a respondent government’s cooperation in Convention proceedings and mindful of the difficulties associated with the establishment of facts in cases of such a nature, the Court finds that the government fell short of their obligations under Article 38.1 of the Convention on account of their failure to submit copies of the documents requested in respect of Said-Khuseyn and Said-Magomed Imakayev’s disappearances.270

However, the Court did not find any violation of Article 34, considering that the issue was already addressed under Article 38, which in its turn had been violated. This conclusion is open to criticism. Irrespective of the lack of cooperation during the examination of the case, one may wonder whether there exists more serious hindrance to the right of application than that of making the applicant himself or one of his relatives disappear. Such behaviour, which has little to do with the examination of the case before the Court, simply adds a serious violation to a previous equally serious violation to the full detriment of the victim and his family. The sequence of making an applicant or his relatives disappear after he has denounced to the Court the disappearance of another relative raises particular concerns, as it is an unacceptable way of intimidating those who are already victims of serious human rights violations. Unfortunately, this seems to have occurred in a number of similar cases,271 as confirmed by the Russian

269

270 271

Article 38: “If the Court declares the application admissible, it shall: a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities”. ECHR, Case Imakayeva, supra note 203, para. 201. See ECHR, Case Magomadov and Magomadov, supra note 256.

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Human Rights Commissionaire, who has stated that “there are several cases of disappearances of applicants before the Court”.272 Finally, the Court ordered Russia to pay 20,000 Euros as pecuniary damage and 70,000 Euros as non-pecuniary damage. 2.4.N

General Remarks

Some conclusions may be drawn as regards the cases so far decided by the European Court concerning enforced disappearances. First, the Court never explicitly declared the existence of a systematic practice of enforced disappearances in south-eastern Turkey. However, such a practice was alleged by the applicants in a considerable number of cases where the Court found serious violations of the rights guaranteed by the European Convention. In almost all the cases the victims are people of Kurdish origin. According to international standards, a systematic practice of enforced disappearance amounts to a crime against humanity.273 It has been established that enforced disappearances always amount to a violation of Articles 5 (right to liberty and security)274 and 13 (right to an effective remedy). Second, the Court has found that, in cases of enforced disappearances, the State has the obligation to carry out an effective and impartial investigation. If this is not done, Article 2 (right to life) of the European Convention is violated with regard to its procedural aspect. As regards the substantive aspect of Article 2 (presumption of death of the victim), evidence “beyond reasonable doubt” is required. This criterion has been applied in a rather flexible way. For instance, in a recent judgment,275 the Court concluded that if the victim was last seen in a circumstance which could be defined as lifethreatening, if a significant number of years have passed since without any relevant information on his fate and whereabouts and if the State authorities fail to provide any plausible explanations, the standard of “evidence beyond reasonable doubt” could be reached and the victim could be presumed dead. This is an improvement with regard to previous cases where the finding of a violation of the substantive aspect of right to life was linked

272 273 274

275

Ibid. See infra 4.3. For notable exceptions, see ECHR cases Tekdag, supra note 247; Togcu, supra note 249; Nesibe Aran, supra note 249; and Seker, supra note 249. ECHR, Case Imakayeva, supra note 261.


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to the passing of certain number of years without information about the disappeared person. However, this is not yet the outcome of an evolutionary trend which may only be reached when, also bearing the context in mind, a substantive violation of the right to life should be presumed from the obstructive behaviour of the respondent State. Third, the criterion to determine a violation of Article 3 (prohibition of torture) with regard to the applicants is not yet well established. In some cases the Court declared that the anguish to which the relatives have been subjected amounts to inhuman and degrading treatment. However, this is not true for all the applicants. It is usually recognized for mothers and fathers, while the case law concerning brothers and sisters is contradictory. Recently, the Parliamentary Assembly of the Council of Europe recommended to its Member States that “family members of the disappeared persons should be recognized as independent victims of the enforced disappearance”, without the need for further qualifications.276 With respect to the right of the material victims not to be subjected to inhuman and degrading treatment, while the Human Rights Committee takes the view that every prolonged incommunicado detention, irrespective of the actual treatment of the victim, constitutes inhuman treatment and the Interamerican Court also presumes a violation of such right in cases of disappearance, the European Court arrives to such conclusion only in cases where there is evidence of torture and ill treatment beyond reasonable doubt. This is also questionable. Once the existence of a widespread or systematic practice of disappearance has been established together with a corresponding practice of torture of prisoners,277 and the material victim has last been seen in the custody of State agents, torture or inhuman and degrading treatment may be presumed, together with the presumption of the death of the victim.278 Fourth, as many of the victims in cases of enforced disappearance are of Kurdish origin, a violation of Article 14 of the European Convention,279

276

277

278

279

Council of Europe, Parliamentary Assembly Resolution 1463 (2005), 3 October 2005, para. 10.2. See also Report of Mr. Pourgourides, supra note 254, paras. 21, 49–51 and 62–66. See, inter alia, the reports of the Special Rapporteur of the United Nations on Torture and on the jurisprudence of the ECHR regarding Turkey. The HRC has recognized that “incommunicado detention amounts to a form of torture and inhuman treatment”. See Case El-Megreisi, supra note 18. While the violation of Article 14 of the European Convention has been alleged in all the analyzed cases of enforced disappearance, the European Court has never found a

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which prohibits discrimination on any ground, may be envisaged.280 It is in fact plausible that the practice of unacknowledged detentions, arbitrary killings, disappearances and systematic human rights violations perpetrated by Turkish officials on people of Kurdish origin may constitute a form of discrimination, motivated by ethnic hatred. Continuing to assume that the several human rights violations perpetrated against Kurdish people and condemned by the Court happen by coincidence and are not due to the same ethnic origin of the victims or their presumed participation in opposition activities is far from convincing. Fifth, and with special regard to cases relating to Russia and to certain Turkish cases,281 the Court found a violation of Article 38.1 of the Convention in situations where the respondent government does not cooperate by providing required documents. However, with specific reference to the Russian cases, the Court did not pay sufficient attention to the disappearance of applicants to the Court itself, failing to declare a violation of Article 34. This practice of “sequence disappearances” is particularly worrying and deserves

280

281

breach of this provision. The Court found it unnecessary to analyze the cases under Article 14 and stated that no violation of the provision could be found, without any further explanation. A similar approach has been expressed in a dissenting opinion by Judge G. Bonello, attached to the Case Anguelova v. Bulgaria, judgment of 13 June 2002, where the judge pointed out that Article 14 had been declared violated only once in the whole case law of the European Court. Nevertheless, he pointed out that “frequently and regularly the Court acknowledges that members of vulnerable minorities are deprived of life or subjected to appalling treatment in violation of Article 3; but not once has the Court found that this happens to be linked to their ethnicity. Kurds, coloureds, Muslims, Roma and others are again and again killed, tortured or maimed, but the Court is not persuaded that their race, colour, nationality or place of origin has anything to do with it. Misfortunes punctually visit disadvantaged minority groups, but only as the result of well-disposed coincidence” (dissenting opinion of Judge G. Bonello to the judgment Anguelova v. Bulgaria, para. 3). In the judgment of 6 February 2004 on the Case Nachova v. Bulgaria, the Court found a combined violation of Article 2 (right to life) and Article 14 (right to non discrimination) in the killing of two young Roma by Bulgarian policemen. However, on 6 July 2005, the Grand Chamber of the Court specified that in the case there was no violation of Article 14 in conjunction with Article 2 of the Convention as regarded the allegation that the events leading to the death of the two young Roma constituted an act of racial violence, but the two Articles had been conjunctly violated as the authorities failed to investigate possible racist motives behind the events. In this sense see ECHR, Case Togcu, supra note 249, partly dissenting opinion of Judge A. Mularoni. ECHR, Case Ipek, supra note 248; Cases Tanis and others and Togcu, supra note 249.


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further attention. In this kind of case, applicants or their representatives may consider the opportunity of requesting the adoption of interim measures to protect their lives and personal integrity, pursuant to Rule 39 of the Rules of the Court. Indeed the well-established case law of the Interamerican Court on this matter should be taken as a reference. Sixth, the European Court should change its criteria on the determination of measures of reparation in cases of serious violations of human rights such as disappearances, bringing them in line with more advanced standards. To date, the European Court has never adopted any measure of compensation other than pecuniary redress. The nature itself of the offence of enforced disappearances, the case law of the Interamerican Court concerning reparations, some developments within the Human Rights Chamber for Bosnia and Herzegovina,282 the needs expressed on several occasions by the relatives of the victims, as well as recent international developments on the subject within the United Nations,283 show that pecuniary redress is largely insufficient. Other modalities of reparation, such as restitution, rehabilitation (when possible), satisfaction, including restoration of honour and reputation and guarantee of non repetition, constitute an adequate way to face the phenomenon with a view also to its prevention. Relatives of the victims constantly ask for truth and justice. No sum of money can grant either truth or justice. The expression “just satisfaction” as provided for in Article 41 of the European Convention cannot be read as meaning “only money”. When a State has been found responsible for such serious violations of human rights, at the very least it should be ordered to carry out serious, effective, impartial and thorough investigations and to take all the necessary steps to locate the mortal remains of the disappeared person and give them back to the relatives. Public ceremonies to admit responsibility, to beg pardon and to restore the honour of both the material victim and his or her relatives represent a further and appropriate step. As pointed out in 2005 by the Rapporteur to the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe: The right to adequate compensation should include measures of restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. The concept of victim of an enforced disappearance must include the disappeared person as well as their relatives.

282 283

See infra 2.5. Principles on Reparation, supra note 112.

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Restitution means first of all that the disappeared person, if still alive, must be released at once. If killed, restitution includes exhumation and identification and the restoration of the mortal remains to the family for a decent burial in accordance with their traditions. Survivors and relatives suffering from post-traumatic stress disorder must receive, as a matter of restitution, the necessary medical, psychological and social care and treatment paid for by the Government responsible. Satisfaction starts with an apology by the authorities and the disclosure of all relevant facts at their disposal, obtained by the required investigation by all appropriate means, including criminal investigations against suspected perpetrators. The authorities must be placed under a clear obligation to bring the perpetrators to justice, meaning criminal justice and not merely disciplinary or administrative sanctions. Perpetrators of enforced disappearances should also not be allowed to benefit from amnesty measures. Guarantees for non-repetition, in addition to holding perpetrators criminally responsible, includes the adoption of appropriate preventive measures. Finally, pecuniary compensation should cover not only legal costs, but also realistically assessed compensation for material damage (including lost income, lost maintenance for dependents), and adequate compensation for the mental and physical suffering of both the disappeared person and his or her relatives.284

2.5

The Human Rights Chamber for Bosnia and Herzegovina

The General Framework Agreement for Peace in Bosnia and Herzegovina (hereinafter referred to as the “Dayton Agreement”)285 was initialled in Dayton on 21 November 1995 and signed in Paris on 14 December 1995 as “a comprehensive settlement to bring an end to the tragic conflict in the region” (preamble). According to its Annex 6 (Agreement on Human Rights), a Human Rights Chamber (hereinafter referred to as “the Chamber”), composed of fourteen members, was established in March 1996.286 It had the

284

285

286

Report of Mr. Pourgourides, supra note 254, paras. 62–66. See also Resolution 1463/2005, supra note 276, para. 10.5.1. The Dayton Peace Agreement was concluded by Bosnia and Herzegovina, Croatia and Yugoslavia and was witnessed by the members of the Contact Group (European Union, France, Germany, Russia, United Kingdom, United States). By this instrument Bosnia and Herzegovina, Croatia and Yugoslavia agreed to fully respect the sovereign equality of one another and to settle disputes by peaceful means. See http://www.hrc.ba and, inter alia, United Nations, Commission on Human Rights, Report submitted by Mr. Manfred Nowak, independent expert charged with examining the


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mandate to consider alleged violations of human rights, as provided in the European Convention and the Protocols thereto, and alleged discriminations arising in the enjoyment of the rights and freedoms provided for in the same Convention and fifteen other treaties listed in the Appendix to Annex 6 to the Dayton Agreement.287 The Chamber was entitled to receive applications by referral from the Ombudsperson288 on behalf of an applicant or directly from any Party to Annex 6 (the Republic of Bosnia and Herzegovina and its two “Entities”, namely the Federation of Bosnia and Herzegovina and the Serb Republic)289 or from any person, non governmental organization or group of individuals claiming to be the victim of a violation by a Party or acting on behalf of alleged victims who were deceased or missing. The Chamber could only receive applications concerning matters which were within the responsibility of one of the Parties to Annex 6 of the Dayton Agreement and which occurred or continued after the entry into force of the Peace Agreement (14 December 1995). The Chamber could issue decisions on whether the facts indicate a breach by the Party concerned of its obligations under

287

288

289

existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71, 8 January 2002, paras. 39–43. Hereinafter referred to as “Report by Mr. Nowak”. Namely: the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; the Four 1949 Geneva Conventions on the Protection of the Victims of War and the two 1977 Geneva Protocols thereto; the 1950 European Convention on the Protection of Human Rights and Fundamental Freedoms and Protocols thereto; the 1951 Convention relating to the Status of Refugees and the 1966 Protocol thereto; the 1957 Convention on the Nationality of Married Women, the 1961 Convention on the Reduction of Statelessness; the 1965 International Convention on the Elimination of All Forms of Racial Discrimination; the 1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols thereto; the 1966 International Covenant on Economic, Social and Cultural Rights; the 1979 Convention on the Elimination of All Forms of Discrimination against Women; the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the 1987 European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; the 1989 Convention on the Rights of the Child; the 1990 Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; the 1992 European Charter for Regional Minority Languages; the 1994 Framework Convention for the Protection of National Minorities. The Office of the Human Rights Ombudsperson was established by Article IV of Annex 6. Called “Republika Srpska” in the Dayton Agreement.

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the Dayton Agreement and on “what steps shall be taken by the Party to remedy such breach, including orders to cease and desist, monetary relief (including pecuniary and non-pecuniary damages), and provisional measures” (Art. XI, para. 1). The situations the Chamber has been called to deal with were mostly covered by international humanitarian law. The Chamber refers to many disappeared people as “missing persons”, using the terminology proper of the Four Geneva Conventions and of situations of armed conflict. The practice of the Chamber may be seen as “hybrid”: while availing itself of a typically humanitarian law concept and wording (“missing persons”), it rendered judgments referring to human rights provisions and applying principles and criteria of human rights law.290 Sometimes the Chamber delivered decisions on issues, such as the Srebrenica massacre, where more than 7,000 men disappeared and were subjected to summary executions. The same case has been considered also by the International Criminal Tribunal for Former Yugoslavia (hereinafter referred to as “ICTY”), although under a different legal perspective. While the ICTY focused on individual responsibilities for crimes such as summary executions and genocide,291 the Chamber allowed several victims of human rights violations and their relatives to obtain justice and reparations.292 The

290

291

292

This overview will not analyse the cases Dzemal Balić v. Serb Republic, decision on the admissibility of 10 September 1998 (Case No. CH/97/74) and Ćebić v. Bosnia and Herzegovina and the Federation of Bosnia and Bosnia and Herzegovina, judgment of 4 July 2003 (Case No. CH/98/668), where no new legal issues have been discussed by the HRCBH. Nor will it analyse the case Dordo Unković v. The Federation of Bosnia Herzegovina, judgment of 9 November 2001 (Case No. CH/99/2150), as the victims had been arbitrary executed and their bodies had been located. Nevertheless, the decision is important for the relevance given by the Chamber to the right of the relatives of the victim to know the truth (see infra 4.11). See, inter alia, ICTY, Prosecutor v. Drazen Erdemovic, No. IT-96-22-T, judgments of the Trial Chamber of 29 November 1996 and Appeals Chamber of 7 October 1997; Prosecutor v. Radislav Kristić, case No. IT-98-33-T, judgment of 2 August 2001; and Prosecutor v. Blagojevic and Jokic, No. IT-02-60, judgment of 17 January 2005. Indeed, in the Blagojevic and Jokic case (supra note 291), the ICTY referred to the fact that: “The impact of the events of Srebrenica upon the lives of the families affected has created what is known as the ‘Srebrenica syndrome’. The most stressful event for Srebrenica survivors is the disappearance of thousands of men, such that every woman suffered the loss of her husband, father, son or brother and many of the families still do not know the truth regarding the fate of their family members” (para. 845).


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Chamber rendered its first decision on 13 September 1996. Its mandate expired at the end of 2003. During these years, it has developed a consistent case law about the issue of enforced disappearances. According to the Chamber’s mandate, every application concerning cases of enforced disappearance that occurred prior to 14 December 1995 (the date of entry into force of the Dayton Agreement) was to be considered as inadmissible on ratione temporis grounds. However, since its first judgments, the Chamber tried to overcome the time obstacle to grant protection to the relatives of over 20,000 persons who disappeared during the conflict in the region. To achieve this end, the Chamber referred to the nature of continuing offence of enforced disappearance. In fact, the Chamber denied its competence to decide on violations of the right to life (Art. 2 of the European Convention) or prohibition of torture (Art. 3) with respect to material victims of enforced disappearance. Instead it found that the continuing nature of the offence gave it the competence to judge about the violation of the right to know the truth of the relatives of the material victims. Almost all the cases of enforced disappearances known by the Chamber were analyzed under the perspective of a possible violation of the prohibition of torture and the right to respect for private and family life (Art. 8) with regard to the relatives of the disappeared people. In doing this, the Chamber developed a wellgrounded jurisprudence (probably the most complete existing until today at the international level) concerning the right to know the truth and to be informed about the fate and whereabouts of the missing ones. 2.5.A

Matanović v. Serb Republic

The first decision of the Chamber (Matanović v. Serb Republic),293 delivered on 13 September 1996, related to the admissibility of a case of enforced disappearance for events which had taken place before 14 December 1995. The Ombudsperson for Bosnia and Herzegovina filed a report on behalf of Josip and Bozana Matanović, the parents of Father Tomislav Matanović, a priest of the Catholic parish at Prijedor in the Serb Republic. He was arrested on 24 August 1995 by local Bosnian Serb police officers and detained at the police station. He was subsequently brought to his parents’ home where he

293

HRCBH, Case Matanović v. Serb Republic, decision of 13 September 1996 (No. CH/96/1).

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was guarded by police officers. On 19 September 1995 he and his parents were taken to the police station and have been missing since then. On 21 December 1995 and 23 March 1996 the authorities of the Serb Republic offered to exchange Tomislav Matanović and his parents for prisoners of war held by the Federation of Bosnia and Herzegovina. But, until today, they have not been exchanged or released and their fate and whereabouts are unknown. Notwithstanding its ratione temporis limitation, the Chamber admitted the case, under this clarification: Bearing in mind that the alleged victims were deprived of their liberty before the entry into force of the Agreement on 14 December 1995. [. . .] In accordance with generally accepted principles of law, the Agreement cannot be applied retroactively. Accordingly, the Chamber is not competent to consider events that took place prior to 14 December 1995, including the arrest and detention of the alleged victims up to 14 December 1995. However, in so far as it is claimed that the alleged victims have continued to be arbitrarily detained and thus deprived of their liberty after 14 December 1995, the subject matter is compatible with the Agreement and comes within the competence of the Chamber ratione temporis.294

The decision on the merits295 of the case was taken on 11 July 1997. The Chamber examined the allegations of the Ombudsperson according to which the Serb Republic had violated Articles 5 (right to liberty and security), 2 (right to life) and 3 (prohibition of torture) of the European Convention. The respondent Party denied that the applicants were ever arrested. However, the Chamber found sufficient evidence of the initial arrest and declared that the Serb Republic did not appear to have properly investigated the allegations. The Chamber, recalling the jurisprudence of both the European Commission and the Interamerican Court,296 applied the reversal of the burden of the proof. Having considered the whole evidence, the Chamber finds that it leads to the reasonable conclusion that the three applicants have been held continuously in detention within the territory of the Serb Republic after their disappear-

294 295

296

Ibid. HRCBH, Case Matanović v. Serb Republic, decision of 11 July 1997 (Merits; No. CH/96/1). The HRCBH recalled the Report of the European Commission on Human Rights on the cases Kurt v. Turkey (supra 2.4.A), 5 December 1996, and Cyprus v. Turkey (supra 2.4.E), 4 June 1999 (at that time the ECHR had not yet rendered any judgment on cases of enforced disappearance). The HRCBH recalled also IACHR, Case Velásquez Rodríguez (Merits; supra 2.3.A), paras. 130–131.


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ance in September 1995 and after the Agreement entered into force on 14 December 1995. [. . .] The evidence before it is not sufficient to allow the Chamber to make any more specific finding as to the place of the applicants’ detention at any time since their disappearance although they may well have been held in some form of unofficial prison. Nor can the Chamber make any specific finding as to the persons directly responsible for the detention since the applicants’ disappearance. It considers, however, that the evidence leads to the reasonable conclusion that the persons responsible have had connections with the police or military forces of the respondent Party, although it is not possible to say whether they have been acting with the approval of the higher governmental authorities. It is possible that one or more of the applicants has died in detention but the evidence does not permit any definite finding to be made on that matter.297

According to the Chamber, the fact that a missing person had been in the custody of the security forces when last seen creates a presumption of responsibility of a respondent government which is not capable of providing credible explanations. The Chamber consequently found a violation of Article 5 of the European Convention: In the Chamber’s opinion the respondent Party has failed either to provide a credible and substantiated explanation for the applicants’ disappearance or to show that they have taken effective steps to investigate the matter. [. . .] In this case, the Chamber refrains from considering whether the forced disappearance of the three applicants constitutes also a violation of Articles 2 and 3 of the Convention. That issue was not raised until towards the end of the proceedings, thus preventing contradictory discussion of the matter.[. . .] In these circumstances the Chamber is of the opinion that the respondent Party has, since 14 December 1995, failed to secure the applicants’ rights to liberty and security of person as guaranteed by Article 5 of the European Convention and is therefore in breach of its obligations under Article I of the Annex 6 of the Agreement.298

The Chamber ordered the respondent State: To take all necessary steps to ascertain the whereabouts or fate of the applicants and to secure their release if still alive. It will also order the respondent Party to report to the Chamber on the steps taken and the results of any investigations carried out. It further considers it appropriate to leave open the possibility of ordering further steps to be taken by the respondent Party as may appear appropriate in the future.299

297 298 299

HRCBH, Case Matanović (Merits, supra note 294), para. 51. Ibid., paras. 59–61. Ibid., para. 63.

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In his concurring opinion, one of the members of the Chamber, Mr. Manfred Nowak, disagreed with the decision on the basis of the evidence of the case and the international legal framework concerning enforced disappearances. Referring to the definition of enforced disappearance given by the 1992 Declaration300 he concluded that: There can be no doubt that the facts as established by the Chamber disclose that the applicants are victims of enforced disappearance in the sense of the UN Declaration. The very act of enforced disappearance is a particularly serious violation of human rights which clearly goes beyond mere arbitrary deprivation of personal liberty and security. According to Article I of the UN Declaration any act of enforced disappearance is “an offence to human dignity” and “places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families”.301

Applying the criteria according to which “acts constituting enforced disappearance shall be considered a continuing offence as long as the perpetrators continue to conceal the fate and whereabouts of persons who have disappeared and these facts remain unclarified”,302 Mr. Nowak reached the conclusion that Articles 3 (prohibition of torture) and 2.1 (right to life), together with Article 1.1 (obligation to respect rights), of the European Convention had been violated. He emphasized that In addition to ascertaining without any further delay the fate and whereabouts of the applicants and to securing their release if still alive, the respondent Party is under an obligation to fully investigate the enforced disappearance of the applicants, to grant them their right to an effective remedy before a national authority in accordance with Article 13 of the European Convention including adequate compensation, and to bring the perpetrators to justice.303

300

301

302 303

Mr. Manfred Nowak further referred to Article III of the 1994 Interamerican Convention, the judgment of the IACHR in the Case Velásquez Rodríguez (Merits; supra 2.3.A), paras. 131 and 156, the views of the HRC in the Case Celis Laureano (supra 2.2.I), para. 8.5, and the judgment of the ECHR in the Case Kurt (supra 2.4.A), paras. 197 and 221. HRCBH, Case Matanović, decision on the merits, supra note 294, concurring opinion of Mr. Manfred Nowak, para. 4. Ibid., para. 7. Ibid., para. 10.


2.5.B

231

Grgić v. Serb Republic

The case Grgić v. Serb Republic 304 was submitted to the Chamber by a nongovernmental organization (the German Section of the International Society for Human Rights, hereinafter referred to as “IGFM”). The application was made on behalf of Father Ratko Grgić, a Catholic priest of Nova Topola. He had allegedly been missing since 16 June 1992, when he was arrested at 1.30 a.m. at his service flat. The arrest was carried out by several persons wearing military uniforms and emblems of the “White Eagles” militia, which, according to the petitioners, was an armed organization integrated into the forces of the Serb Republic and under its effective control. After his arrest Father Grgić was driven away to an unknown destination. According to the petitioners, Father Grgić was still being held incommunicado by organs or agents of the Serb Republic or elements under their effective control. IGFM claimed violations of the right to liberty and security of person, the right to a fair hearing in criminal matters, the right to private life and home and the right to freedom of thought, conscience and religion. It recalled the approach undertaken by the European Commission on Human Rights in two cases,305 which established a presumption of responsibility of the respondent State if the victim has last been seen in custody of State agents. However, in the view of the Chamber, the Grgić case was substantially different: In particular in both the Cyprus v. Turkey and the Kurt cases, the arrest and disappearance of the persons concerned had occurred at a time when the European Convention was in force as regards Turkey. It was therefore possible for the Commission to hold that Turkey was to be presumed responsible under the Convention for their fate as a result of its having detained them and of its failure to account for them or to conduct adequate investigations. In the present case the respondent Party cannot be held responsible under the Agreement for acts or omissions which occurred before it came into force. The Chamber could therefore only find that the respondent Party had breached its obligations under the Agreement if there were evidences before it which showed that the applicant had been unlawfully detained, or that his rights under the Agreement had otherwise been infringed, at some time after 14 December 1995.306

304

305

306

HRCBH, Case Grgić v. Serb Republic, decision of 5 February 1997 (Admissibility; No. CH/96/15) and decision of 5 August 1997 (Merits; No. CH/96/15). Report of the European Commission on Human Rights on the Case Cyprus v. Turkey, paras. 116–123 and on the Case Kurt, paras. 198–215. HRCBH, Case Grgić (Merits; supra note 305, para. 15).

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The Chamber also recalled the jurisprudence of the Interamerican Court,307 according to which, in cases of enforced disappearance, the State has the positive obligation to carry out a serious investigation of violations under its jurisdiction, to identify those responsible, to impose appropriate punishment and to ensure the victim adequate compensation. According to the Chamber, This obligation applies only if there is evidence (including circumstantial or presumptive evidence) indicating that the detention has continued after the entry into force of the Agreement.308

On this basis, the Chamber, by ten votes against three, reached the conclusion that: The only evidence offered by the IGFM relates to the alleged arrest and abduction of the applicant, which is said to have occurred over three years before the Agreement came into force. Having regard to the background of war and inter-communal strife which prevailed during that period, the Chamber holds that such evidence would not of itself be sufficient to support the conclusion that the applicant has remained in detention after the Agreement came into force. No violation of the Agreement is therefore established in this case.309

Yet with this judgment the Chamber reverted its previous decision concerning the burden of proof, to the detriment of the protection of the victims of enforced disappearance and their relatives. In this regard, two members, Mr. Vlatko Markotić and Mr. Želmir Juka, attached a dissenting opinion. Analyzing the specific facts and the existing international case law, they pointed out that there was a lack of logic in the reasoning of the Chamber, which basically imposed on the applicant an almost impossible burden of proof. They concluded that: The burden of proof that the detention is still going on is not only on the applicant but the respondent Party is obliged to take an active part in the procedure as well, and to provide evidence that the victim has been liberated. [. . .] It is absurd to require the victim in custody, or the applicant on behalf of the victim, to provide evidence that he has not been liberated before 14 December 1995 and that the detention continued after 14 December 1995. [. . .] The above mentioned statements, interpreted or quoted, of the case law and the UN Declaration are for the most part applicable to the present case, but

307 308 309

IACHR, Case Velásquez Rodríguez (Merits; supra 2.3.A), para. 174. HRCBH, Case Grgić (Merits; supra note 305), para. 17. Ibid., para. 19.


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because of the passiveness of the respondent Party, of the Ombudsperson for Bosnia and Herzegovina and of the Human Rights Chamber, the illusion is created in the Decision of the Chamber that there are important differences between this case and the Cyprus v. Turkey and Kurt cases.310

2.5.C

Palić v. Serb Republic

The decision on the case Palić v. Serb Republic was delivered on 11 January 2001.311 The application was brought before the Chamber by Esma Palić on her own behalf and on behalf of her husband, Colonel Avdo Palić. He was a commander of the army of the Republic of Bosnia and Herzegovina in the Žepa enclave. In July 1995, when intensive fighting with Bosnian Serb forces was going on in that area, Col. Palić was negotiating the evacuation of civilians on U.N. premises and under the U.N. safety guarantee. A meeting with General Rupert Smith, the UNPROFOR Commander for Bosnia and Herzegovina, was scheduled for 27 July 1995. However, when Col. Palić arrived at the UNPROFOR base on that day he was forcibly taken away by Armed Serb soldiers in front of U.N. soldiers and monitors and taken in the direction of Gen. Mladić’s command position. As of today, Col. Palić is still registered as a missing person. Mrs. Palić was alleging on behalf of her husband a violation of his right to liberty and respect for his family life as well as of all his civil rights. In the case that he was no longer alive, she complained that he had been deprived of his right to life and of the right to be decently buried. She also complained on her own behalf that she and her children had suffered for the uncertainty of the whereabouts of Col. Palić, this being a violation of “the right to know about the fate of one’s husband and father”. The Serb Republic argued that it was up to the applicant to prove that Col. Palić was held in prison by it on or after 14 December 1995. It invoked the inadmissibility of the application for, inter alia, ratione temporis reasons. The Chamber rejected both assumptions, arguing that strong circumstantial evidence existed that Col. Palić was still held in detention after 14 December 1995. As Mrs. Palić was claiming that this constituted an ongoing violation of the right to life, to privacy and freedom from torture, inhuman and degrading treatment, this fact alone could justify the competence of the Chamber. After having evaluated the existence of remedies in the domestic

310 311

Ibid., dissenting opinion of Judges V. Markotić and Ž. Juka, para. III, V. HRCBH, Case Palić v. Serb Republic, decision of 11 January 2001 (No. CH/99/3196).

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legal system, as well as the general legal and political context, the Chamber imposed the burden of proof on the respondent Party. On the merits of the case, the Chamber declared the violation by the Serb Republic of the right to liberty and security of person (Art. 5 of the European Convention) with respect to Col. Palić, by failing to: Discharge its responsibility to account for him and it must be accepted that he has been held in unacknowledged detention in the complete absence of the safeguards contained in Article 5 of the Convention.312

Concerning the alleged violation of Article 2.2 (right to life), the Chamber recalled the 1992 Declaration, according to which any act of enforced disappearance represents a “grave threat to life”. The Chamber further recalled the jurisprudence of both the European and Interamerican Courts of Human Rights, according to which “circumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim”.313 It therefore concluded that: According to the European Court of Human Rights, the period of time which has elapsed since the person was placed in detention, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time goes by without any news on the detained person, the greater the likelihood that he or she has died. Taking into account that about five years have passed without information as to Colonel Palić’s whereabouts or fate, the Chamber concludes that the respondent Party has violated Colonel Palić’s right to life, as guaranteed under Article 2 of the Convention.314

The same reasoning315 led to the declaration of a violation of Article 3 (prohibition of torture) both with respect to the victim and to the applicant. The Chamber also found a violation of Article 8 (right to respect for private and family life) in relation to the applicant, who had invoked her right to know the truth about the fate and whereabouts of her husband.316 The Chamber

312 313

314 315

316

Ibid., para. 62. ECHR, Case Kurt (supra 2.4.A), para. 63. IACHR, Case Velásquez Rodríguez (Merits; supra 2.3.A), para. 131. HRCBH, Case Palić, supra note 312, paras. 69 and 70. HRC, Case Celis Laureano (supra 2.2.I), para. 8.5, and Case Quinteros (2.2.B), para. 14; ECHR, Case Kurt (supra 2.4.A), para. 133, and Case Tas, supra note 226, para. 79. On the right to know the truth see infra 4.11.


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taking into account the evidence before it, finds that Mrs. Palić has sufficiently substantiated that the respondent Party is arbitrarily withholding from her information, which must be in its possession, concerning the fate of her husband, including information concerning her husband’s body, if he is no longer alive. It follows that the respondent Party has violated her right to respect for her family life under Article 8 of the Convention.317

The European Convention lacks a specific provision enshrining the right to know the truth. But this right may be considered as falling within the scope of the Convention, according to a broad interpretation of its provision and in the light of its object and purpose. While the Chamber linked the right to know to the right to respect for private and family life, the Interamerican Court found that it was protected by Articles 8 (right to fair trial) and 25 (right to judicial protection) of the American Convention, where the right to know is not specifically mentioned either.318 Both ways lead to the same result. In the Palić case, the Chamber ordered the Serb Republic to carry out without delay a full investigation and to bring to justice those found to be responsible. If the victim was still alive, the Chamber ordered the respondent Party to release him; if not, to make available his mortal remains to his wife and to make all information and findings relating to the fate and whereabouts of Col. Palić known to the family.319 2.5.D

Selimović (Srebrenica cases) and others v. Serb Republic

The most outstanding case judged by the Chamber is known as the Srebrenica case. It concerned forty-nine applications filed by immediate family members of Bosniak men (citizens of Bosnia and Herzegovina of Islamic belief) presumed to have been killed in the mass execution of 7,000 to 8,000 Bosniaks carried out by the army of the Serb Republic from 10 to 19 July 1995 in and around the city of Srebrenica. All the cases concerned missing men (husbands, sons and brothers of the applicants). All the victims of the

317 318

319

HRCBH, Case Palić, supra note 312, para. 84. See, inter alia, IACHR, Case Castillo Páez (Merits; supra 2.4.H); Case Bámaca Velásquez (Merits; supra 2.3.N), paras. 180–197; and Case Masacre de Pueblo Bello (supra 2.3.U), para. 214. The Chamber also ordered the respondent party to pay Mrs. Palić KM 15,000 by way of compensation for her mental suffering and KM 50,000 in respect of her husband by way of compensation for non-pecuniary damage.

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Srebrenica case were listed as missing persons with the State Commission for Tracing Missing Persons.320 The Chamber rendered the decision on admissibility and merits of the case on 7 March 2003.321 The Chamber deemed it appropriate to take as a reference for the historical context and underlying facts the comprehensive description of the Srebrenica events made by the Trial Chamber of the ICTY in the judgment issued on 2 August 2001 in the case Prosecutor v. Radislav Kristić:322 The thousands of Bosnian Muslim prisoners captured, following the takeover of Srebrenica, were executed. Some were killed individually or in small groups by the soldiers who captured them and some were killed in the places where they were temporarily detained. Most, however, were slaughtered in carefully orchestrated mass executions, commencing on 13 July 1995, in the region just north of Srebrenica. Prisoners not killed on 13 July 1995 were subsequently bussed to execution sites further north of Bratunac, within the zone of responsibility of the Zvonic Brigade. The large scale executions in the north took place between 14 and 17 July 1995”. [. . .] On the execution fields, the men “were lined up and shot”. Immediately afterwards, the bodies were buried with earth moving equipment, either on the site of the killing or nearby. [. . .] According to forensic evidence, “in September and early October 1995, Bosnian Serb forces dug up many of the primary mass gravesites and reburied the bodies in still more remote locations”. [. . .] According to statistical data compiled by the ICRC, [. . .] the total number of persons for whom a tracing request was opened by the family was 7,588. Of those, the number of persons unaccounted for whose fate still has not been clarified was 7,059. (. . .) According to information compiled and scientific research conducted by the International Commission on Missing Persons,323 as of 6 September 2002 there are approximately 7,500 bags of human remains currently in storage, which have been exhumed from various gravesites in northeast Bosnia and Herzegovina and which concern those missing from Srebrenica in July 1995. Almost 2,000 of these bags contain complete bodies, another 2,000 contain partial bodies of one individual, and the remaining 3,500 bags contain commingled remains

320

321

322

323

None of them were members of the army of the Republic of Bosnia and Herzegovina or were engaged in military tasks in July 1995. HRCBH, Case Selimović (Srebrenica cases) and others v. Serb Republic, decision of 7 March 2003. ICTY, Prosecutor v. Radislav Kristić, supra note 291. The Tribunal found Gen. Kristić guilty of genocide and murder. An organization created in 1996 to address the issue of persons missing as a consequence of the conflicts in the former Yugoslavia and to bring relief to the families of the missing, regardless of religious, national or ethnic origin.


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(human remains from a number of bodies where the grave has been disturbed and remains mixed). [. . .] The authorities of the Serb Republic neither participate in this identification process nor contribute funds toward it.324

In September 2002 the Documentation Centre of the Serb Republic published the “Report about Case Srebrenica”. With respect to the “alleged massacre” of Muslim soldiers who fled into the woods, the report emphasizes that “those soldiers were carrying weapons in spite of Mladić’s repeated warning, and there was ferocious fighting between those Muslim soldiers and Bosnian Serb soldiers”. “Taking into consideration the huge loss of Bosnian Serb forces under the favourable conditions for them, it can be estimated that Muslim forces must have suffered the loss of nearly 2,000 soldiers from military perspectives”. After refuting some evidence of mass killings of men, the report admits that “considering that a number of Serbs were killed by Muslim neighbours in a very cruel way in 1992 and 1993, there must have been summary executions for the purpose of personal revenge”. With respect to mass graves, the report notes that “mass graves does not always mean mass execution”. In responding to the lists of missing persons stating that “as many as 6,000–8,000 Muslim men were executed by Bosnian Serb forces”, the report describes this figure as “evidently inflated”. The report notes that, given the large number of women in Muslim families, it can be assumed that several different women reported the same man as missing. “As a consequence, the remaining figure in the missing list would be the number of Muslim soldiers who were executed by Bosnian Serb forces for personal revenge or for simple ignorance of the international law. It would probably stand at less than 100”. The Chamber considered the cases only in connection to the right of family members to be informed about the fate and whereabouts of the missing ones. It evaluated issues raised under Articles 3 (prohibition of torture), 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the European Convention. It mentioned as relevant legal framework Articles 32, 33, 34 of Additional Protocol No. 1 to the 1949 Geneva Conventions, the 1992 Declaration (namely Arts. 1, 2 and 13), the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Arts. 1, 2, 3, 4, 5) and the Statute of the ICTY (Art. 9, establishing concurrent jurisdiction between the ICTY and domestic courts).

324

ICTY, Prosecutor v. Radislav Kristić, supra note 291, paras. 17–18 and 20–32.

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When asked to submit its observations with respect to admissibility and merits of the case, the Serb Republic did not provide explanations on the merits, apart from generally “contesting” all the facts presented in the applications. It contended that the “factual situation was incomplete, unclear and self-contradictory” and that “crucial facts were missing in order to establish the status of the applicants’ relatives”. It also argued that there was a critical distinction between the terms “disappeared persons” and “missing persons”. In order to be “disappeared persons” falling under the 1992 Declaration, the Serb Republic assumed that the persons must be “arrested, detained or abducted against their will”. However, in these cases, the presumed victims of Srebrenica events “decided to go into the woods” and then “went missing without a trace”. Therefore, according to the Serb allegations, they resulted as being “unaccounted for persons” or “missing persons” and not “disappeared persons” within the meaning of the 1992 Declaration. Accordingly, the Serb Republic submitted that the applications were incompatible ratione materiae with the Dayton Agreement. In this regard, the Chamber observed that the family members’ claims under Articles 3 and 8 of the European Convention did not appear to require that the missing persons were the victims of “enforced disappearances” or otherwise “arrested, detained or abducted against their will”. The Chamber found that, regardless of whether the victims were classified as “missing persons” or “disappeared persons”, the Srebrenica cases, insofar as they related to claims by family members seeking to know the fate and whereabouts of their loved ones who had been missing since 10–19 July 1995, were compatible ratione materiae with the Dayton Agreement. Another objection put forward by the Serb Republic was the inadmissibility ratione temporis of the applications, as the alleged violations occurred before 14 December 1995. The Chamber partially accepted the Serb objection, determining that it was not competent to consider violations of human rights that had occurred during the period 10–19 July 1995. It decided to consider only whether the authorities of the Serb Republic had violated the human rights of the family members of the missing persons of the Srebrenica events by failing to inform them, since 14 December 1995, about their fate and whereabouts. As for the alleged violation of Article 8 of the European Convention, the Chamber found that the respondent Party had not conducted any meaningful investigation into the Srebrenica events. In making this statement, the Chamber was fully cognisant of the existence of the already mentioned Srebrenica


239

Report, which it considered as presenting an exclusively one-sided view of the events and as not clarifying the fate and whereabouts of the thousands of missing Bosniaks from Srebrenica. As regards the interference with the right to respect for private and family life, the Chamber took particular note of the “catastrophic” impact of the Srebrenica events on the lives of the surviving family members of the missing persons. Because the fate and whereabouts of their loved ones was still not officially known, many were unable to achieve any sense of closure and to psychologically recover or to move on with their lives. It was emphasized that in a patriarchal society, such as the one in which the Bosnian Muslims of Srebrenica lived, the elimination of virtually all of the men made it almost impossible for the women who survived to successfully re-establish their lives. The Chamber concluded that the Serb Republic had breached its positive obligation to secure respect for the applicants’ rights protected by Article 8 in that it had failed to make accessible and disclose information requested about the applicants’ missing relatives. When dealing with the issues raised under Article 3 of the European Convention, the Chamber stated from the beginning that it considered it as a particular expression of the “right to know the truth”. It took as a reference the leading case of the European Court Cyprus v. Turkey.325 According to the Chamber, there are “special factors considered with respect to the applicant family members claiming a violation of Article 3 for inhuman treatment due to the lack of official information on the whereabouts of a loved one”: Primary consideration is the dimension and character of the emotional distress caused to the family member, distinct from that which would be inevitable for all relatives of victims of serious human rights violations; proximity of the family tie, with weight attached to parent-child relationships; particular circumstances of the relationship between the missing person and the family member; extent to which the family member witnessed the events resulting in the disappearance – however, the absence of this factor may not deprive the family member of victim status; overall context of the disappearance, i.e., state of war, breadth of armed conflict, extent or loss of life; amount of anguish and stress caused to the family member as a result of the disappearance; involvement of the family member in attempts to obtain information about the missing person – however, the absence of complaints may not necessarily deprive the family member of victim status; persistence of the family member in making complaints, seeking information about the whereabouts of the missing person, and substantiating his or her complaints. [. . .] The

325

ECHR, Case Cyprus v. Turkey, supra 2.4.E.

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essential characteristic of the family member’s claim under Article 3 is the reaction and attitude of the authorities when the disappearance is brought to their attention. In this respect, the special factors considered as to the respondent party are the following: response, reactions, and attitude of the authorities to the complaints and inquiries for information about the fate of missing person – complacency, intimidation, and harassment by authorities may be considered aggravating circumstances; extent to which the authorities conducted a meaningful and full investigation into the disappearance; amount of credible information provided to the authorities to assist in their investigation; extent to which the authorities provided a credible, substantiated, explanation for a missing person last seen in the custody of the authorities; duration of lack of information – a prolonged period of uncertainty for the family member may be an aggravating circumstance; involvement of the authorities in the disappearance.326

Applying these criteria, the Chamber observed that the authorities of the Serb Republic had done virtually nothing to clarify the fate and whereabouts of the presumed victims of the Srebrenica events or to take other action to relieve the suffering of their surviving family members or to contribute to the process of reconciliation in Bosnia and Herzegovina.327 The Chamber considered the failure of the respondent Party to clarify the fate and whereabouts of the Bosniak men missing from Srebrenica during the period of 10–19 July 1995 through a meaningful and effective investigation and a full statement of disclosure of all relevant facts, made known to the public, as a particularly egregious violation of the rights of the applicants protected under Article 3 of the European Convention. 326

327

HRCBH, Case Selimović (Srebrenica cases) and others, supra note 321, paras. 185 and 186. HRCBH, Case Selimović (Srebrenica cases) and others, supra note 321, para. 188. The Chamber found that the Serbian authorities had failed to: investigate the facts concerning the credible claim of mass killings of Bosniaks from Srebrenica in July 1995; undertake any action to determine or to disclose the periods and places of detention of Bosniak prisoners captured from Srebrenica in July 1995; interview any of the participating officers, soldiers, or members of the RS Army to ascertain what had happened and to publicly disclose this information; contact the survivors, families of the missing persons or other witnesses to take their statements; disclose the locations of the mass gravesites (both primary and secondary); undertake any investigation to locate unknown gravesites; undertake any action to assist the actions of others in locating the gravesites and identifying exhumed mortal remains; provide any financial support to any of the exhumation projects, identification projects or memorial projects, such as the Srebrenica-Potočari Memorial and Cemetery; undertake any prosecutions of the persons responsible for the mass killings of Bosniaks from Srebrenica in July 1995.


241

The Chamber analyzed the case also under the profile of a possible violation of Article 14 of the European Convention (prohibition of any kind of discrimination in the enjoyment of human rights and fundamental freedoms). It considered that any differential treatment was to be deemed discriminatory if it had no reasonable and objective justification, that is, if it did not pursue a legitimate aim or if there was no reasonable relationship of proportionality between the means employed and the aim sought to be realized. The Chamber put the burden of proof on the respondent Party, remarking that the respondent Party had not demonstrated that the breaches of Articles 3 and 8 were not related to the ethnic or religious origin of the applicants: The very existence of the RS Srebrenica Report indicates differential treatment towards the applicants because the Report establishes that the authorities of the Serb Republic have conducted an investigation into crimes committed against civilian Serbs from the Srebrenica area and disclosed the results of that investigation to the public, while they have not conducted an equal investigation into crimes committed against Bosniaks from Srebrenica or disclosed any such information to the public. [. . .] Throughout the RS Srebrenica Report the religious or national origin of the designated victims (i.e. the Serbs) and the religious or national origin of the designated criminals or wrongdoers (i.e. the Muslims or Bosniaks) is emphasized. Thus, it is apparent from the face of the Report that such differential treatment is based upon the religious or national origin of the applicants as Bosniaks.328

The Chamber concluded that the Serb Republic had discriminated the applicants due to their Bosniak origin, failing to fulfil its obligations under the European Convention (Arts. 3 and 8). As for the reparations, the Chamber ordered to the Serb Republic: – to release all information presently within its possession, control, and knowledge with respect to the fate and whereabouts of the missing loved ones of the applicants, including information on whether any of the missing persons are still alive and held in detention and if so, the location of their detention, and whether any of the missing persons are known to have been killed in the Srebrenica events and if so, the location of their mortal remains. The Serb Republic shall immediately release any such missing persons who are still alive and held in detention unlawfully. – to conduct a meaningful, thorough, and detailed investigation into the events giving rise to the established human rights violations, with a view to

328

Ibid., paras. 198 and 199.

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– –

– –

– –

making known to the applicants, all other family members, and the public, the Serb Republic’s role in the facts surrounding the massacre at Srebrenica in July 1995, its subsequent efforts to cover up those facts, and the fate and whereabouts of the persons missing from Srebrenica since July 1995. to further prepare an interim status report on the steps taken by it to comply with this order which shall be submitted to the Chamber within three months after the delivery of the judgment. to disseminate, as a form of reparation for social damage, the information contained in the judgment as widely as possible within the territory of the Serb Republic, the Chamber will order the Serb Republic to publish the text of the entire decision on admissibility and merits, together with any concurring or dissenting opinions, in full in Serbian in the Official Gazette of the Serb Republic within two months from the date of delivery of the decision. to make a collective compensation award to benefit all the family members of the persons missing from Srebrenica since July 1995. to order the Serb Republic to make a lump sum contribution to the Foundation of the Srebrenica-Potočari Memorial and Cemetery for the collective benefit of all the applicants and the families of the victims of the Srebrenica events in the total amount of 4 Million Convertible Marks, to be used in accordance with the Statute of the Foundation. although the Chamber recognizes that the applicants have personally suffered pecuniary and non pecuniary damages, the Chamber will not make any individual awards of compensation. in the light of the violations found in the present cases, the Chamber considers that a further appropriate remedy would be for the Serb Republic to make a public acknowledgement of responsibility for the Srebrenica events and a public apology to the victims’ relatives and the Bosniak community of Bosnia and Herzegovina as a whole. However, a public acknowledgement of responsibility and a public apology can only provide a real remedy for the applicants when the statements are honest, genuine, sincere and self-initiated, which is to say not compelled by a court order. Therefore, the Chamber will refrain from ordering the Serb Republic to make such a public acknowledgement of responsibility or a public apology because, in the context of the Srebrenica cases, the Chamber finds such an order inopportune. The Chamber expresses the hope, however, that someday these statements will be forthcoming from the Serb Republic on its own initiative.329

These conclusions basically follow the most advanced international case law on the matter. However, the decision not to make any awards of compen-

329

Ibid., paras. 211–214 and 217–219.


243

sation for pecuniary and non-pecuniary damages to the relatives of the victims, after having recognized that they had suffered both kinds of damages, is not supported by any further explanation. The conclusion of the Chamber about the need for a public acknowledgement of responsibility and public apologies by the respondent Party recalls the established case law on reparation of the Interamerican Court.330 Nevertheless, the Chamber adds that it is not up to an international tribunal to order apologies, which instead should be genuine and self-initiated. This does not seem fully convincing, as apologies can be considered as a due form of moral satisfaction after certain kinds of internationally wrongful acts. The standards established in the Srebrenica case have been followed by the Chamber in all its subsequent judgments on enforced disappearance.331 In most cases, since the victims had disappeared before December 1995, the Chamber considered that it was not competent ratione temporis to evaluate the alleged violations of the right to life and freedom from torture of the material victims. It considered the relatives of the missing as victims of autonomous violations of freedom from inhuman and degrading treatment (Art. 3) and the right to family life (Art. 8), since they had been deprived of their right to know the truth about the fate and whereabouts of their loved ones. However, the Chamber did not follow in any other case of enforced disappearance the precedent set out by the Srebrenica case where it found a violation of the prohibition of discrimination (Art. 14) on grounds of religious belief or ethnic origin.

330 331

See supra 2.3. HRCBH, Case Pašović, Nikšić and Burić v. Serb Republic, decision of 7 November 2003 (Nos. CH/01/8569, CH/02/9611, CH/02/9613, CH/02/11195, CH/02/11391); Case Popović v. the Federation of Bosnia and Herzegovina, decision of 7 November 2003 (No. CH/02/10074); Case Smajić and others v. Serb Republic, decision of 5 December 2003 (No. CH/02/8879); Case Jovanović v. the Federation of Bosnia and Herzegovina, decision of 5 December 2003 (No. CH/02/9180); Case Husković and others v. the Federation of Bosnia and Herzegovina, decision of 22 December 2003 (No. CH/02/12551); Case Mujić and others v. Serb Republic, decision of 22 December 2003 (No. CH/02/10235); Case M. Ć. and others v. Serb Republic, decision of 22 December 2003 (No. CH/02/9851); and Case Malkić and others v. Serb Republic, decision of 22 December 2003 (No. CH/02/9358).

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2.6


Conclusive Remarks on International Case Law

The review of international case law shows an effort by the competent bodies to seize the concept of enforced disappearance through its various components and to sanction a serious human rights violation even though it is not specifically codified as such under most of the existing applicable international instruments (with the notable exception of the Interamerican system after 1994). This effort may explain some discrepancies even within the case law of the same body. As pointed out by Mr. Manfred Nowak in his 2002 report on the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances: If one analyses the case law, however, this qualification of an act of enforced disappearance as a cumulative human rights violation is fairly controversial and depends to a great extent on the precise facts, which are, of course, difficult to establish. The only human rights violation which has been established in every case of enforced disappearance is the violation of the right to personal liberty.332

The conclusion reached by Mr. Nowak that “this contradicting case law clearly reveals a gap in the protection against enforced disappearance”333 can only be subscribed. This is the reason why a new instrument establishing an “independent and non-derogable human right not to disappear” was needed. Such an instrument could become a source of inspiration for the relevant international bodies to further pursue the efforts to grant protection to the victims of enforced disappearance. It could also become a tool of reference to guide towards a uniform interpretation of the fragmentary provisions contained in the applicable international instruments.

332 333

Report of Mr. Nowak, supra note 286, para. 75. Ibid., para. 76.

Chapter III The Existing International Legal Framework on Enforced Disappearance Before the adoption of the 2007 International Convention for the Protection of All Persons from Enforced Disappearance (hereinafter referred to as the “2007 Convention”), only a few international instruments of normative character specifically dealt with the subject of enforced disappearance. They shall be briefly analyzed hereunder.

3.1 The 1992 Declaration on the Protection of All Persons from Enforced Disappearance 3.1.A

The First Steps

The practice of enforced disappearances1 was considered by the General Assembly of the United Nations on 18 December 1978, when adopting Resolution No. 33/173, entitled “Disappeared Persons”.2 In the Resolution the General Assembly recalled the provisions of the Universal Declaration 1

2

As this book does not deal with international humanitarian law, the provisions of the Four Geneva Conventions of 1949 and the two Additional Protocols to those Conventions of 1977 that refer to the protection of “missing” persons and their relatives are not considered in this chapter. For an analysis of international humanitarian law provisions referring to the subject, see United Nations, Commission 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, E/CN.4/2002/71, 8 January 2002, paras. 53–64. In 1975 both the Commission on Human Rights and the General Assembly had referred to the subject of “persons unaccounted for” in Cyprus and Chile. The term “disappeared” was used for the first time by the General Assembly on 16 December 1977 in Resolution 32/118, para. 2, referring to Cyprus. For an overview on the subject, see Report by Mr. Nowak, supra note 1, paras. 11–16.

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Scovazzi & Citroni – Chapter III

of Human Rights which are violated by the offence of enforced disappearance: right to life (Art. 3), liberty and security of person (Art. 5), freedom from torture (Art. 9), freedom from arbitrary arrest and detention (Art. 10) and right to a fair and public trial (Art. 11).3 The General Assembly also recalled that, according to reports received from various parts of the world, enforced disappearances often are the result of excesses on the part of law enforcement or security authorities or similar organizations, as well as of unlawful actions or widespread violence. The General Assembly called upon governments: a) [. . .] To devote appropriate resources to searching for such persons and to undertake speedy and impartial investigations; b) To ensure that law enforcement and security authorities and organizations are fully accountable, especially in law, in the discharge of their duties, such accountability to include legal responsibility for unjustifiable excesses which might lead to enforced or involuntary disappearances and to other violations of human rights; c) To ensure that the human rights of all persons, including those subjected to any form of detention and imprisonment are fully respected; d) To co-operate with other governments, relevant United Nations organs, specialized agencies, intergovernmental organizations and humanitarian bodies in a common effort to search for, locate or account for such persons in the event of reports of enforced or involuntary disappearances.

The Commission on Human Rights was requested by the General Assembly to consider the issue of enforced disappearances, with a view to making appropriate recommendations. The Secretary General was requested to transmit the concerns expressed by the General Assembly to the attention of all governments, regional and interregional organizations and specialized agencies for the purpose of conveying on an urgent basis the need for disinterested humanitarian action to respond to the situation of persons who had disappeared. In 1979 the Commission on Human Rights4 gave the mandate to the then Sub-Commission on Prevention of Discrimination and Protection of Minorities to deal with the matter and to formulate recommendations to it.5

3

4

5

There was also a mention of the relevant provisions of the International Covenant on Civil and Political Rights (Arts. 6, 7, 9, 10). United Nations, Commission on Human Rights, Decision 15 (XXXV), Official Records Suppl.6 (E/1979/36), 1979. See also United Nations, Economic and Social Council, Resolution 1979/38, 10 May 1979.

Existing International Legal Framework on Enforced Disappearance

247

To address the pressing needs expressed by the organizations of relatives of disappeared people, the Sub-Commission proposed to create a Working Group of experts who, closely co-operating with governments and with the families of the victims, could collect the necessary information so as to find those who had disappeared.6 In 1980 the Commission on Human Rights established the Working Group on Enforced or Involuntary Disappearances.7 The General Assembly, in Resolution 35/193 of 15 December 1980, welcomed the creation of the Working Group and appealed to the governments to co-operate with it and to the Commission on Human Rights to enable it to perform its tasks effectively. The mandate of the Working Group, which is made up of five independent experts, is to assist families in determining the fate and whereabouts of their relatives who have disappeared. The Working Group endeavours to establish a channel of communication between the families and the governments concerned in order to ensure that individual cases which families have brought to the Group’s attention are investigated with the objective of clarifying the whereabouts of disappeared persons. Clarification occurs when the fate or whereabouts of the disappeared person is clearly established, irrespective of whether the person is alive or dead. The Working Group continues working on cases of disappearance until such time as they are clarified. The General Assembly, in the resolutions regarding the issue of enforced disappearance adopted between 1981 and 1988,8 limited itself to welcoming the decisions of the Commission on Human Rights and to extending for one year the term of the Working Group, expressing appreciation for its activities. It also requested the Commission to continue to study the issue of enforced disappearance as a matter of priority, reiterating the call on all governments to provide the Working Group with full co-operation and renewing the request to the Secretary General to provide the Working Group with all necessary assistance. Even though the General Assembly persistently defined enforced disappearances as a “matter of priority”, it simply confined itself, for a period

6

7

8

United Nations, Sub-Commission on Human Rights, Resolution 5B (XXXII), 5 September 1979. United Nations, Commission on Human Rights, Resolution 20 (XXXVI), 29 February 1980. United Nations, General Assembly, Resolutions 36/163, 16 December 1981; 37/180, 17 December 1982; 38/94, 16 December 1983; 39/111, 14 December 1984; 40/147, 13 December 1985; 41/145, 4 December 1986; 42/142, 7 December 1987; 44/160, 15 December 1987; 43/159, 8 December 1988.

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of eight years, to repeating this formula, without any further attempt to take other relevant measures to deal with the matter. It was only in 1990 that the General Assembly reported with deep concern that: The practice of enforced disappearances persists and, in certain cases, the families of the disappeared have been the target of intimidation and ill treatment [. . .] and there is a growing number of reports concerning harassment of witnesses of disappearances or relatives of victims.9

In 1984 the Sub-Commission on Prevention of Discrimination and Protection of Minorities prepared a preliminary draft on an International Declaration against the Unrecognized Detention of Persons, but this text was not further discussed. In 1988 the Sub-Commission, through its Working Group on Detention, initiated a debate concerning a draft Declaration presented by the expert Louis Joinet.10 The non governmental organization International Commission of Jurists convened in 1988 a seminar in Geneva involving experts of the Sub-Commission, members of the Working Group on Enforced or Involuntary Disappearances, representatives of the families of the disappeared persons as well as members of several human rights non governmental organizations for the purpose of improving the draft. The text as it emerged from this seminar was presented and adopted by the Sub-Commission and it was then submitted to the Commission on Human Rights and, finally, to the General Assembly for adoption. The Commission, before sending the text to the General Assembly, established an Intersessional Open-ended Working Group to continue elaborating the document. The text was subject to a negotiation involving several compromises which somehow weakened the original draft. On 18 December 1992 the General Assembly of the United Nations adopted without vote Resolution 47/133, containing the Declaration on the Protection of All Persons from Enforced Disappearance. The Working Group on Enforced or Involuntary Disappearances actively participated in the elaboration of the 1992 Declaration and welcomed it as a milestone in the efforts to combat the practice of disappearance.

9 10

United Nations, General Assembly, Resolution 45/165, 18 December 1990. See W. Tayler, “Background to the Elaboration of the Draft International Convention on the Protection of All Persons from Enforced Disappearance”, in Review of the International Commission of Jurists, special issue on “Impunity, Crimes Against Humanity and Forced Disappearance”, 2001, pp. 63–73.


3.1.B

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The Content of the 1992 Declaration

The 1992 Declaration, as a resolution of the General Assembly, has a significant moral and symbolic value, but it is not binding by itself. It however includes several provisions which indirectly have binding effects insofar as they clearly reproduce generally recognized customary rules. Moreover, it can contribute to the progressive development of international law by establishing principles which are subsequently confirmed by States’ practice. It gave the first internationally agreed definition of the offence of enforced disappearance. It also provided a set of rules that all the States of the United Nations were called upon to apply as a minimum to prevent and suppress the practice. Most of the provisions of the 1992 Declaration, which is composed of 21 articles, will be analyzed when discussing the main legal issues related to the 2007 Convention because of the influence they exercised on this instrument.11 In the preamble of the 1992 Declaration the General Assembly recalls its precedent resolutions on enforced disappearance and the human rights and humanitarian law instruments violated by this offence,12 expressing the need to move from the level of general human rights instruments to the establishment of a specific “standard setting” instrument.13

11

12

13

See infra Chapter IV, for the analysis of provisions regarding several important subjects, namely: the definition of the offence, enforced disappearances as crimes against humanity, the codification of the offence under domestic criminal law, superior orders, jurisdiction, extradition, the statute of limitations, the continuous nature of the offence, the competence of military and special courts, amnesties, pardons and similar measures, the victims of the crime, the measures of reparation, enforced disappearance of children and the right to obtain information on the detainees. The instruments are the following: Universal Declaration of Human Rights (1948), Four Geneva Conventions (1949) and their Additional Protocols (1977), International Covenant on Civil and Political Rights (1966), Convention against Torture (1984), Code of Conduct for Law Enforcement Officials (1979), Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Standard Minimum Rules for the Treatment of Prisoners (1957), Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment (1988), Principles on the Effective Prevention and Investigation of Extra-legal Arbitrary and Summary Executions (1989). 1992 Declaration, preamble: “Bearing in mind that, while the acts which comprise enforced disappearance constitute a violation of the prohibitions found in the aforementioned international instruments, it is nonetheless important to devise an instrument which characterizes all acts of enforced disappearance of persons as very serious offences and sets forth standards designed to punish and prevent their commission”.

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Article 1 lists in a non-exhaustive way the human rights which are violated by acts of enforced disappearance which is qualified as an offence to human dignity. Any act of enforced disappearance is an offence to human dignity. It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field. Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts sever suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life.

The primary obligations of the States to prevent and suppress enforced disappearances are the following: No State shall practice, permit or tolerate enforced disappearances. States shall act at the national and regional levels and in cooperation with the United Nations to contribute by all means to the prevention and eradication of enforced disappearance (Art. 2). Each State shall take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction (Art. 3).

Article 414 and 5 of the 1992 Declaration impose on States the obligations to take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance, in particular to establish civil liability for the offence. Several among the provisions of the 1992 Declaration devote particular attention to the need for preventive measures in order to effectively tackle the phenomenon of enforced disappearances (preamble, Arts. 2, 3, 4, 10, 12 and 18). No circumstances whatsoever can be invoked to justify it (Art. 7). Moreover, the 1992 Declaration establishes a set of obligations of States as regards the right to a prompt and effective remedy and judicial guarantees for the relatives of disappeared persons and their representatives (Arts. 9 and 13). Of particular interest is Article 16.1 which has not been repeated by any following instrument on the issue:

14

See infra 4.2.


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Persons alleged to have committed any of the acts referred to in Article 4, paragraph 1, above, shall be suspended from any official duties during the investigation referred to in Article 13 above.

Article 15 is also a peculiar provision which has not been reproduced by any of the following binding or non binding instruments on enforced disappearances: The fact that there are any grounds to believe that such a person has participated in acts of an extremely serious nature such as those referred to in Article 4, paragraph 1, above, regardless of the motives, shall be taken into account when the competent authorities of the State decide whether or not to grant asylum.

3.1.C

The Implementation of the 1992 Declaration

Since 1993 the United Nations Working Group on Enforced or Involuntary Disappearances, besides its usual humanitarian mandate, has also annually reported on the implementation of the 1992 Declaration and the obstacles encountered therein. The Working Group regularly transmits to the governments concerned a summary of allegations received from relatives of disappeared persons and non governmental organizations with regard to obstacles encountered in the implementation of the 1992 Declaration in their respective countries, inviting them to comment thereon if they so wish. The Working Group has frequently invited relatives of disappeared persons, organizations representing them, as well as human rights non governmental organizations, to periodically inform and update it about steps undertaken by governments to implement the Declaration. In its annual reports the Working Group has repeatedly stressed that the obligation to implement the 1992 Declaration does not only apply to those States where acts of enforced disappearances occurred in the past or continue up to the present day. Legislative and other preventive measures shall be taken by all States in order to ensure that acts of disappearance will not occur in the future.15 At present few States fully comply with this obligation.16

15

16

Office of the High Commissioner for Human Rights, Fact Sheet No. 6 (Rev.2), “Enforced or Involuntary Disappearances” (http://www.unhcHuman Rights.ch/html/menu6/2/fs6. htm). General Comment of the UNGWEID on Article 3 of the 1992 Declaration: “The provision calls for action both by States in any territory under their jurisdiction of which acts of enforced disappearance might have occurred in the past and by States in which

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Until 2006 the Working Group has also adopted general comments on the implementation of Articles 3 (obligation to take legislative, administrative, judicial and other measures), 4 (obligation to codify the offence of enforced disappearance under criminal law), 10 (obligation to hold persons deprived of liberty in officially recognized places and to maintain up-todate registers), 17 (statutory limitations), 18 (amnesty laws and similar measures) and 19 (right to redress) of the 1992 Declaration.17

3.2 The Interamerican Convention on Forced Disappearance of Persons In 1987, within the American regional framework, the General Assembly of the OAS asked the Interamerican Commission on Human Rights to draw up a draft Convention on the subject of enforced disappearance. In 1988 the Interamerican Commission presented a draft that was particularly original and complete in its contents. However, the draft remained until 1992 before the OAS Committee on Juridical and Political Affairs and, during the subsequent negotiations, it lost some of its most protective elements. Finally, on 6 September 1994, the OAS General Assembly approved in Belém do Pará, Brazil, the Interamerican Convention on Forced Disappearance of Persons (hereinafter, referred to as the “1994 Interamerican Convention”), which entered into force on 28 March 1996. This instrument, aiming to prevent, punish and eliminate the phenomenon of enforced disappearance,

17

such acts have not occurred. All States must have appropriate machinery for preventing and terminating such acts and are therefore under an obligation to adopt the necessary measures to establish such machinery if they do not have it. [. . .] The provision must be understood as the general framework for guiding States and encouraging them to adopt a set of measures. It must be understood that the international responsibility of States in this regard arises not only when acts of enforced disappearance occur, but also when there is a lack of appropriate action to prevent or terminate such acts. Such responsibility derives not only from omissions or acts by the government and the authorities and officials subordinate to it, but also from all the other government functions and mechanisms, such as the legislature and the judiciary, whose acts or omissions may affect the implementation of this provision”. In its 2005 Report the UNGWEID analyzed the implementation of Article 18 of the 1992 Declaration (UNGWEID, Annual Report for 2005, E/CN.4/2006/56, 27 December 2005, para. 49). The general comment, which is of particular interest as it regards the crucial issue of amnesties and similar measures, will be considered infra 4.8.


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is composed of 22 provisions. The fact that the first international legally binding instrument on enforced disappearances was promoted by Latin American countries has a strong symbolic value. In general, the 1994 Interamerican Convention represents a significant step forward in international human rights law, especially because it provides for the first time in a binding instrument an internationally agreed definition of the offence and qualifies the systematic practice of disappearance as a crime against humanity. Furthermore, the 1994 Interamerican Convention includes positive and innovative provisions as regards the continuing nature of the offence, the exclusion of the competence of military or special tribunals and amnesty laws or similar measures. According to Articles XIII and XIV, the Interamerican Commission on Human Rights and the Interamerican Court of Human Rights are entrusted with the monitoring and implementation of this instrument. Most of the provisions of the 1994 Interamerican Convention will be analyzed when discussing the main legal issues related to the 2007 Convention because of the influence they exercised on this instrument.18 Despite its several merits, the 1994 Interamerican Convention reveals some normative gaps. First, it does not elaborate on the issue of prevention of enforced disappearances, limiting itself to mentioning some generic obligations. Without further specifications on the subject, States parties undertake: a. Not to practice, permit or tolerate the enforced disappearance of persons, even in states of emergency or suspension of individual guarantees; b. To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons, as well as their accomplices and accessories;19 c. To cooperate with one another to prevent, punish and eliminate the forced disappearance of persons; 18

19

See infra Chapter IV for the analysis of provisions regarding several important subjects, namely: the definition of the offence, enforced disappearances as crimes against humanity, the codification of the offence under domestic criminal law, superior orders, jurisdiction, extradition, the statute of limitations, the continuous nature of the offence, the competence of military and special courts, amnesties, pardons and similar measures, the victims of the crime, the measures of reparation, enforced disappearance of children and the right to obtain information on the detainees. As of October 2006, enforced disappearance has been codified as an autonomous offence in Latin America at the domestic level by: Argentina, Colombia, El Salvador, Guatemala, Mexico, Paraguay, Peru, Uruguay, and Venezuela.

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d. To take legislative, administrative, judicial and any other measures necessary to comply with the commitments undertaken in this Convention (Art. I). Second, it leaves out the issue of judicial guarantees for the victims, their relatives or representatives and their right to have complaints immediately, thoroughly and impartially investigated by competent authorities. Third, it does not mention the obligation of States Parties to adopt all necessary measures to protect against ill-treatment, intimidation and reprisals all persons involved in the investigation of a case of disappearance including the complainant, the relatives of the disappeared person and their associations and legal counsels. Fourth, Article XIX of the 1994 Interamerican Convention allows for the submission of reservations: The States may express reservations with respect to this Convention when adopting, signing, ratifying or acceding to it, unless such reservations are incompatible with the object and purpose of the Convention and as long as they refer to one or more specific provisions.

Among the States Parties to the 1994 Interamerican Convention, Guatemala and Mexico made reservations. While Guatemala already withdrew its reservation, the Mexican reservation is still effective.20

3.3 The Rome Statute for the Establishment of an International Criminal Court The 1998 Rome Statute for the Establishment of an International Criminal Court (hereinafter referred to as “1998 Rome Statute”) includes “enforced disappearance of persons” among the crimes against humanity (Art. 7.1.i) “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. It also provides for a definition of the crime (Art. 7.2.i).21

20

21

The Mexican reservation is related to the issue of competence of “military tribunals” in cases of enforced disappearances (see infra 4.7). The Guatemalan reservation referred to Article V of the 1994 Interamerican Convention and was withdrawn on 7 September 2001. See infra 4.2 and 4.3.


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By including for the first time enforced disappearances among the crimes against humanity, the 1998 Rome Statute undertook an historical change. It was not listed among such crimes in any of the previous instruments, namely the Charter of the Tribunal of Nuremberg, the Statute of the Tokyo Tribunal, the Statutes of the Tribunals for the former Yugoslavia and Rwanda.22

3.4

The Need for a Universally Legally Binding Instrument

The first effort to promote an international instrument against enforced disappearance was undertaken back in 198123 by the Human Rights Institute of the Paris Bar Association (Ordre des Avocats de Paris) which convened a colloquium on the issue of enforced disappearances. Following the Paris colloquium, in 1982 the Latin American Federation of Associations for Relatives of the Detained-Disappeared (FEDEFAM) adopted a draft Convention at its annual congress in Peru. This draft was largely inspired by the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. In 1986 a draft declaration was adopted by the First Colloquium on Forced Disappearances in Colombia convened by the José Alvear Restrepo Lawyers Collective of Bogotá. This text was sent to the United Nations Working Group on Enforced or Involuntary Disappearances and to the Commission on Human Rights pointing out that an international convention on the issue would have been a step forward in international human rights law. In 1988 FEDEFAM and the Grupo de Iniciativa (a federation of Argentine non governmental organizations) drafted a project for an International Convention against Enforced Disappearance. In the subsequent years the 1992 Declaration, the 1994 Interamerican Convention, as well as the 1998 Rome Statute were adopted. Notwithstanding, a universally legally binding instrument against enforced disappearances was still lacking while the phenomenon was on the increase worldwide.

22

23

According to A. Cassese, “Crimes against Humanity”, in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court – A Commentary, vol. I, Oxford, 2002, p. 376, Article 7 of the 1998 Rome Statute is broader than customary international law, as far as the crime of enforced disappearance of persons is concerned. See, inter alia, W. Tayler, “Background to the Elaboration of the Draft International Convention on the Protection of All Persons from Enforced Disappearance”, supra note 10.

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In 1998, following four years of work and various consultative meetings with experts from the United Nations and non governmental organizations, the Sub-Commission for the Promotion and Protection of Human Rights adopted the “Draft International Convention for the Protection of All Persons from Enforced Disappearance” (hereinafter referred to as the “1998 Draft Convention”).24 It was composed of a preamble and 39 provisions and was drafted by the Working Group on the Administration of Justice of the Sub-Commission, chaired by Mr. Louis Joinet.25 By decision 2001/221 the Economic and Social Council of the United Nations endorsed the decision of the Commission on Human Rights to create an Intersessional Open-ended Working Group with the mandate to prepare a draft legally binding normative instrument for the protection of all persons from enforced disappearance. The 1998 Draft Convention was the basis of discussion in the subsequent negotiations. Comparing the 1998 Draft Convention with the final text of the 2007 Convention, it is evident that some innovative provisions have been deleted and that the extent of others has been significantly limited as a result of compromises in negotiations.26 However, in a few cases, the final text of the 2007 Convention has broadened the protection recognized to material victims of disappearance and their relatives.27 In 2001 the Commission on Human Rights appointed Mr. Manfred Nowak as independent expert to

24

25

26

27

United Nations, Economic and Social Council, E/CN.4/Sub.2/1998/19, Annex, 19 August 1998. The Working Group referred to the 1992 Declaration, to the 1994 Interamerican Convention, as well as to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the established practice of the United Nations Working Group on Enforced or Involuntary Disappearances (E/CN.4/Sub.2/1998/19, supra note 24, paras. 10–15). See infra Chapter IV for the analysis of provisions regarding several important subjects, namely: the definition of the offence, enforced disappearances as crimes against humanity, the statute of limitations, the competence of military and special courts, amnesties, pardons and similar measures, right to truth, respect for human remains, the victims of the crime, the forms of reparation, enforced disappearance of children, the monitoring body and the right to obtain information on detainees. On the right to truth, the respect for human remains and the forms of reparation see infra 4.11, 4.12 and 4.13.


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examine existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance, taking into account relevant legal instruments at the international and regional levels, intergovernmental arrangements on judicial cooperation, the draft international convention for the protection of all persons from enforced disappearance,28 transmitted by the Sub-Commission in its resolution 1998/25 of 26 August 1998, and also comments of States and intergovernmental and non-governmental organizations, with a view to identifying any gaps in order to ensure full protection from enforced disappearance and to report to the Commission on Human Rights and to the Working Group.29

The independent expert reported to the Commission on Human Rights pointing out that: There do exist plenty of gaps and ambiguities in the present legal framework which clearly underscore the urgent need for a binding universal instrument in order to prevent the widespread practice of enforced disappearances, one of the most serious human rights violations which is directed at the core of the dignity of both the disappeared person and his or her family. [. . .] The most important gap is the lack of a binding obligation to make sure that enforced disappearance is a crime under domestic law with appropriate penalties, and that the principle of universal jurisdiction applies to the crime. It is important that Article 7 of the Rome Statute of the International Criminal Court (ICC) recognizes enforced disappearance as a crime against humanity but perpetrators will only in very exceptional circumstances of a widespread and systematic practice be held accountable before the ICC. Effective domestic criminal justice must, therefore, be regarded as the most important mechanism in order to deter and prevent disappearances. Another gap concerns the definition of disappearance which constitutes a multiple human rights violation of a much more serious nature than just arbitrary deprivation of personal liberty.30 It was not enough to affirm that enforced disappearance involved a violation of several rights, such as the right to life, the right to liberty and security, the right not to be subjected to torture or the right to acknowledgment of one’s legal personality. These were only partial aspects of the act of disappearance which did not take into account its full complexity.31

28 29 30

31

1998 Draft Convention, supra note 24. United Nations, Commission on Human Rights, Resolution 2001/46, 23 April 2001. United Nations High Commissioner for Human Rights, 26 March 2002, Oral Presentation of the Report submitted by Mr. Manfred Nowak, Independent Expert, on the international legal framework for the protection of persons from enforced disappearance, pursuant to para. 11 of Commission Resolution 2001/46. Observations by Mr. Nowak (Report of the Intersessional Open-ended Working Group to

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The Intersessional Open-ended Working Group, chaired by the French Ambassador Bernard Kessedjian, met for the first time in Geneva in January 2003 and afterwards held two sessions a year. In the beginning perplexities about the opportunity of a new universally legally binding instrument on enforced disappearances were expressed both by experts and State representatives.32 Canada, for instance, upon the request to present views about the draft and its necessity, answered the United Nations Commission on Human Rights that it considered the 1992 Declaration, other international instruments (including the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the 1998 Rome Statute) as already providing sufficient legal protection. Canada added that the creation of a proposed Committee against Forced Disappearance would not be appropriate at that time as “the proliferation of treaty monitoring bodies and of international instruments has translated into a proportional increase in reporting requirements and hence in States’ reporting burdens”.33 However, States’ reporting burdens should not be considered to be worse than the increasing number of disappearances in the world and the substantial paralysis on the issue of the existing monitoring bodies and, in particular, of the Human Rights Committee.34 On the same occasion Switzerland expressed a partially diverging view, envisaging a further optional protocol to the Covenant on Civil and Political Rights: The question now is whether, eight years after its adoption, the 1992 Declaration gives a strong enough political signal to the international community to put an end to enforced disappearances throughout the world. The answer is that it does not, since the United Nations General Assembly, in Resolution 55/103 adopted at its fifty-fifth session (2000), states that it is ‘[d]eeply concerned, in particular, by the intensification of enforced disappearances in various regions of the world and by the growing number of reports concerning the harassment,

32

33 34

Elaborate a Draft Legally Binding Normative Instrument for the Protection of All Persons from Enforced Disappearance, E/CN.4/2004/59, 23 February 2004, para. 170). United Nations, Commission on Human Rights, Question of Enforced or Involuntary Disappearances, E/CN.4/2001/69/Add.1, 14 March 2001; and F. Andreu Guzmán, “The Draft International Convention on the Protection of All Persons from Forced Disappearance”, in Review of International Commission of Jurists, issue on “Impunity, Crimes Against Humanity and forced disappearance”, 2001, pp. 73–107. E/CN.4/2001/69/Add.1, supra note 32, comments by Canada. See infra 4.15.


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ill-treatment and intimidation of witnesses of disappearances or relatives of persons who have disappeared’ [. . .]. The added benefit that the draft international convention might provide vis-à-vis the International Covenant is that it tackles the problem of enforced disappearance from all angles and in full scope. The International Covenant on Civil and Political Rights (Arts. 6, 7, 9, 10, 14, 16 and 26) covers virtually all the rights violated by a forced disappearance. It would thus be appropriate to consider whether, instead of a completely new convention, a third optional protocol could be added to the Covenant to deal with forced disappearances. Such a protocol would contain substantive provisions inspired by the draft convention, namely a comprehensive, specific definition of forced disappearances, making it a criminal offence, and obligations to prevent, investigate and punish such disappearances, to cooperate internationally and to offer reparation. This operation would avoid the setting up of a new, costly mechanism to monitor State Parties: the Human Rights Committee would be in charge of it.35

Switzerland also declared that it would have preferred to avoid the creation of a new monitoring body, as the already existing Human Rights Committee could well have done it. Indeed, it is true that the International Covenant on Civil and Political Rights protects the majority of the rights violated by an enforced disappearance. However, the Covenant does not establish specific obligations with regard to prevention, investigation, repression and international cooperation in cases of enforced disappearances. Nor does the Covenant stipulate any obligation to codify enforced disappearance as an autonomous offence under domestic criminal law, to exercise territorial and extra-territorial criminal jurisdiction with respect to the presumed perpetrators of the offence, to maintain registers of detained persons, or to prevent and suppress the abduction of children born during the captivity of their disappeared mothers. In international human rights law the existence of normative instruments already protecting a broad range of rights has not prevented the adoption of new specific treaties: this is the case, among others, of the Convention on the Rights of the Child (1989).36 Most of the rights recognized in its provisions were already enshrined in the Universal Declaration of Human Rights, in the Covenant and in a number of existing international instruments. However,

35 36

E/CN.4/2001/69/Add.1, supra note 32, comments by Switzerland. It is also the case of the Convention on the Elimination of All Forms of Discrimination Against Women (1980) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1985).

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having regard to the special need of protection of children, it was deemed necessary to draft an autonomous Convention. The 1998 Rome Statute allows for the prosecution of persons accused of enforced disappearances by the International Criminal Court. However, the Court will consider acts of enforced disappearance as crimes against humanity only “when committed as part of a widespread or systematic attack directed against any civilian population”.37 Moreover, as the 1998 Rome Statute does not go beyond the scope of international criminal law, it does not establish obligations for prevention, investigation and suppression of enforced disappearance under the perspective of international human rights law. It is a matter of fact that, in spite of various efforts by the Working Group on Enforced or Involuntary Disappearances to remind governments of their obligation to implement the provisions of the 1992 Declaration by taking appropriate legislative, administrative, judicial or other measures, very little progress has been made in practice. A new ad hoc treaty on enforced disappearance, applying on a world basis, will address existing open issues about enforced disappearances and substantially increase the threshold of protection with respect to this practice. For instance, in 2005 the Rapporteur to the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe insisted on the need to fill the gaps existing in the present international legal framework pointing out that: The perpetrators of such crimes (enforced disappearances), which still occur also in Council of Europe member States, often enjoy impunity, for two reasons: national laws are incomplete and not properly enforced in an effort to protect perpetrators; international instruments in the human rights field do not fully cover the problem of enforced disappearance, and, in particular, do not allow for international or transnational prosecution of perpetrators and of those who cover-up their actions. [. . .] The description of the existing legal framework shows that a universally recognized definition of enforced disappearance is still lacking. The disputed issues include that of the responsibility of non-State actors, the requirement of a subjective element in the definition, and the concept of the right not to be subjected to enforced disappearance in terms of the specific human right(s) violated by such acts. [. . .] The substance of the necessary improvements of the legal framework follows directly from the lacunae described above, which must be filled, including the clarifying of State obligations (definition of enforced disappearance encompass-

37

Article 7.2.i of the 1998 Rome Statute.


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ing all relevant cases, recognition of the rights of family members, including right to reparation, measures to fight impunity, preventive measures). Two issues that deserve special attention are the need for an international mechanism for rapid intervention, and the right to adequate compensation.38

Accordingly, the Parliamentary Assembly of the Council of Europe stressed in Resolution 1463/2005 of 3 October 2005 that: Unfortunately, a number of important gaps still exist in the international legal framework, regarding, inter alia, the definition of enforced disappearance, the precise extent of States’ obligations to prevent, investigate and sanction such crimes, and the status of the victims and their relatives (para. 8).

At the final session of the negotiation (Geneva, 12–23 September 2005), after more than three years of debate, the representatives of the States agreed by consensus on the following proposals made by the chairman of the Intersessional Open-ended Working Group: a) decide, in principle, that the instrument should take the form of a convention; b) decide that the title of the convention would be “International Convention for the Protection of All Persons from Enforced Disappearance”; c) establish a new Committee, to be called the “Committee on Enforced Disappearances”, to monitor the convention; and d) to include a clause providing for review by the Conference of States Parties.39

38

39

Council of Europe, Parliamentary Assembly, Enforced Disappearances, Report to the Committee on Legal Affairs and Human Rights, Rapporteur Mr. Christos Pourgourides, Doc. 10679, 19 September 2005, paras. 5, 45 and 60. United Nations, Economic and Social Council, Report of the Intersessional Open-ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of All Persons from Enforced Disappearances, E/CN.4/2006/57, 2 February 2006, para. 83. In their final statements, Angola, Canada, the Netherlands and Iran reiterated their view that the instrument should take the form of an optional protocol to the ICCPR and that the Human Rights Committee should be the body to monitor it. They however added that, in the interest of consensus they were not opposing the proposed solution (ibid., para. 84). Similar statements were made by Canada and India at the moment of adoption of the text by the Third Committee of the United Nations General Assembly: see General Assembly, GA/SHC/3872, Third Committee Approves Draft Resolution Concerning Convention on Enforced Disappearances, 13 November 2006.

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The Intersessional Open-ended Working Group concluded its work on 23 September 2005 with the adoption of the final project of the above mentioned convention. The convention was subsequently adopted on 29 June 2006 by the newly established Human Rights Council (Resolution 1/1)40 and on 13 November 2006 by the Third Committee of the United Nations General Assembly. Finally, on 20 December 2006 it was adopted by the General Assembly in plenary by Resolution 61/177.41 After 25 years of struggle, the organizations of relatives of disappeared persons named 2006 “the year of the Convention”. On 6 February 2007 the convention was opened for signature in Paris and was signed by 57 States. It will enter into force on the 30th day after the deposit with the United Nations Secretary General of the 20th instrument of ratification or accession.42 This new legal instrument is composed of a preamble and 45 articles. As already remarked,43 it could fill the gaps that presently hinder the struggle against enforced disappearance, strengthening the prevention of this heinous practice. It provides, inter alia, for the establishment of a Committee on Enforced Disappearances that will be entrusted with several tasks, among which the examination of State reports, the possibility to receive individual complaints and an innovative “emergency procedure” in the case of early

40

41

42

43

United Nations, Human Rights Council, Summary Records of the 3rd Meeting, A/HRC/2/ SR.3, 3 October 2006. See United Nations, Human Rights Council, Report of the Human Rights Council to the Third Committee of the General Assembly, A/C.3/61/L.17, 27 October 2006; and GA/SHC/3872, supra note 39. The 2007 Convention does not mention the possibility of making reservations. During the negotiations different views were expressed on the issue of reservations. The non governmental organization FIDH (International Federation for Human Rights) and Italy stated their preference for a provision explicitly excluding the possibility of making reservations, as it was provided in Article 36.1 of the 1998 Draft Convention (for a precedent in this sense, see Article 17 of the Optional Protocol to the Convention on the Elimination of Discrimination against Women of 10 December 1999). This approach would have been preferable, taking into account the nature of the Convention which is that of a human rights treaty. The absence in the 2007 Convention of any provision on reservations means that reservations are admissible except when they are not compatible with the object and purpose of the Convention, as provided for in Article 19 of the Vienna Convention on the Law of Treaties: see E/CN.4/2006/57, supra note 126, Annex II, paras. 159–160. See supra 1.9.


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warning of disappearance. Most of the provisions of the convention have been thoroughly analyzed, negotiated, drafted and redrafted, so that a general consensus on them has been achieved. However, this was sometimes done at the price of not expressly addressing some critical issues, which have been left to the good faith of States and to future developments of international human rights and customary law.44

44

For general statements by the delegations participating to the negotiations to draft the 2007 Convention, see E/CN.4/2006/57, supra note 39, Annex II and GA/SHC/3872, supra note 39.

Chapter IV The 2007 Convention and its Main Legal Issues 4.1 An Autonomous Human Right not to be Subjected to Enforced Disappearance Article 1 of the 2007 Convention provides as follows: 1. No one shall be subjected to enforced disappearance. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.1

This new provision represents an historical achievement in international human rights law, as it establishes an autonomous, non-derogable human right.2 This may be seen as the fulfilment of an evolutionary process resulting, with some contradictions, from non-binding legal instruments, the case law of a number of international human rights bodies and the only specific, although regional, precedent of the 1994 Interamerican Convention.3 The importance of the human right not to be subjected to enforced disappearance is strengthened by the recent finding of the Interamerican Court of Human Rights, according to which “the prohibition to carry out enforced disappearance and the corresponding obligation to investigate and punish those found to be responsible have acquired the character of jus cogens”.4 It follows that any treaty which would provide 1

2

3 4

The preamble of the 2007 Convention also refers to the “right of any person not to be subjected to an enforced disappearance”. United Nations, Commission 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, E/ CN.4/2002/71, 8 January 2002, para. 76, hereinafter referred to as “Report by Mr. Nowak”. See supra Chapters II and III. IACHR, Case Goiburú and others v. Paraguay, judgment of 22 September 2006, para. 84. See supra 2.3.V.

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Scovazzi & Citroni – Chapter IV

for cooperation in carrying out practices of enforced disappearance or in protecting those responsible shall be considered as null and void, with the consequences provided for in Article 71.1 of the Vienna Convention on the Law of Treaties.5 As it can be inferred from Article 1.2 of the 2007 Convention, the latter also applies in time of war.6 As provided for in Article 43, the 2007 Convention does not prejudice the provisions of international humanitarian law, including the Four 1949 Geneva Conventions and the two 1977 Additional Protocols.7 This means that the specific rules applying to certain forms of deprivation of liberty which are typical in time of war, such as the rules relating to the protection of prisoners of war, are not modified by the 2007 Convention. However, it is also clearly understood that acts of enforced disappearance are not allowed against prisoners of war and the civilian population, either in a belligerent country or in the territories occupied by it. Such acts, which are also in conflict with international humanitarian law, fall under the scope of the 2007 Convention. The main legal issues discussed in the process of the drafting of the 2007 Convention are analyzed hereunder.

5

6 7

Article 71.1: “In the case of a treaty which is void under Article 53 [treaties conflicting with a peremptory norm of general international law ( jus cogens)] the parties shall: (a) eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law; and (b) bring their mutual relations into conformity with the peremptory norm of general international law”. See also supra 3.1.B. Article 43 has been interpreted by the representatives of the United Kingdom as a “savings clause in order to ensure that the relevant provisions of international humanitarian law took precedence over any other provisions contained in the Convention” (see United Nations, General Assembly, Third Committee Approves Draft Resolution Concerning Convention on Enforced Disappearances, GA/SHC/3872, 13 November 2006). On the same subject, the United States of America stated that it understands this provision to confirm that the provisions of the law of armed conflict, also called international humanitarian law, remain the lex specialis in situations of armed conflict and in other situations to which humanitarian law applies. The United States understands Article 43 to operate as a “savings clause” in order to ensure that the relevant provisions of international humanitarian law take precedence over any other provisions contained in this Convention (see United Nations, General Assembly, Note Verbale dated 20 June 2006 from the Permanent Mission of the United States of America to the United Nations Office in Geneva, addressed to the Secretariat of the Human Rights Council, A/HRC/1/G/1, 27 June 2006).

The 2007 Convention and Its Main Legal Issues

4.2

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The Definition of the Offence

As results from the previous chapters, both international instruments and judicial decisions have provided definitions of enforced disappearance.8 However, before the 2007 Convention, a universally agreed9 and binding definition of the offence was still lacking.10 On 18 December 1978 the General Assembly of the United Nations, when dealing with the issue of enforced disappearances, did not provide a definition of the phenomenon. Resolution 33/173 Disappeared Persons states that any act of enforced disappearance might be considered as a violation of several provisions of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. For instance, as regards the former, the rights to life (Art. 3), liberty and security of person (Art. 5), freedom from torture (Art. 9), freedom from arbitrary arrest and detention (Art. 10) and the right to a fair and public trial (Art. 11) were explicitly mentioned. On the occasion of the international colloquium convened in 1981 by the Human Rights Institute of the Paris Bar Association (Ordre des Avocats de Paris), which constituted the first attempt to draft a text to be

8

9

10

See A. Blanc Altemir, La violación de los derechos humanos fundamentales como crimen internacional, Barcelona, 1990, pp. 335–376; W. Tayler, “Background to the Elaboration of the Draft International Convention on the Protection of All Persons from Enforced Disappearance”, in Review of the International Commission of Jurists, issue on “Impunity, Crimes Against Humanity and Forced Disappearance”, 2001, pp. 63–73; and F. Andreu Guzmán, “The Draft International Convention on the Protection of All Persons from Forced Disappearance”, in Review of International Commission of Jurists, issue on “Impunity, Crimes Against Humanity and forced disappearance”, 2001, pp. 73–107. This paragraph does not consider the question of the definition of enforced disappearance under domestic criminal codes, whenever it is defined. See infra 4.4.A. Council of Europe, Parliamentary Assembly, Enforced Disappearances, Report to the Committee on Legal Affairs and Human Rights, Rapporteur Mr. Christos Pourgourides, Doc. 10679, 19 September 2005, para. 45, hereinafter referred to as “Report by Mr. Pourgourides”. “The description of the existing legal framework shows that a universally recognized definition of enforced disappearance is still lacking. The disputed issues include that of the responsibility for non-State actors, the requirement of a subjective element in the definition, and the concept of the right not to be subjected to enforced disappearance in terms of the specific human right(s) violated by such an act”. See also Report by Mr. Nowak, supra note 2, paras. 73–74: “[. . .] present international law contains different definitions of enforced disappearances”.

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proposed as an international convention against enforced disappearances, the following definition of the offence was envisaged: The expression forced or involuntary disappearance applies to any action or deed capable of undermining the physical, psychological or moral integrity or security of any person.11

While fully understandable in the context of the very first discussion on the matter, this definition seems too broad to deal with a specific human rights violation. Since 1982 the Human Rights Committee12 delivered several views on cases of enforced disappearances. However, it never provided a definition of the offence as such. Indeed one can infer how the Committee understood the concept of enforced disappearance from the list of the provisions of the Covenant which have been considered to be violated, namely: 6 (right to life), 7 (freedom from torture, cruel, inhuman and degrading treatment), 9 (right to liberty and security of person), 10 (right to be treated with humanity and with respect for inherent dignity when a person is deprived of his or her liberty) and 14 (right to a fair trial). In 1983 the General Assembly of the OAS too broadly qualified enforced disappearances as: A cruel and inhuman practice that undermines the rule of law, which weakens those norms that guarantee protection against arbitrary detention and the right to personal safety and security.13

In a Resolution of 1984 the Parliamentary Assembly of the Council of Europe defined the offence of enforced disappearance as “incompatible with the ideals of any human society” and as a “flagrant attempt on an entire catalogue of human rights” (then specified as right to life, right to liberty, right to the security of person, freedom from torture and inhuman and degrading treatment, freedom from arbitrary arrest or detention and right to a fair trial).14 In 1988 the first judgment of the Interamerican Court of Human Rights contained a rather detailed description of the offence of enforced

11 12 13

14

Le refus de l’oubli – La politique de disparition forcée de personnes, Paris, 1981. See supra 2.2. OAS, General Assembly, Resolution AG/RES.666 (XIII-0/83), 18 November 1983, preamble and para. 4. Council of Europe, Parliamentary Assembly, Resolution 828/1984, 26 September 1984.


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disappearance, based on a list of the violated human rights. All the subsequent judgments on the matter will refer to this first precedent: The phenomenon of disappearances is a complex form of human rights violation that must be understood and confronted in an integral fashion.15 The forced disappearance of human beings is a multiple and continuous violation of many rights under the Convention that the States Parties are obligated to respect and guarantee. The kidnapping of a person is an arbitrary deprivation of liberty, an infringement of a detainee’s right to be taken without delay before a judge and to invoke the appropriate procedures to review the legality of the arrest, all in violation of Article 7 of the Convention which recognizes the right to personal liberty.16 Moreover, prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being. Such treatment, therefore, violates Article 5 of the Convention, which recognizes the right to the integrity of the person.17 The practice of disappearances often involves secret execution without trial, followed by concealment of the body to eliminate any material evidence of the crime and to ensure the impunity of those responsible. This is a flagrant violation of the right to life, recognized in Article 4 of the Convention.18

However, to reach a definition of enforced disappearance by merely listing the several human rights which have been violated is not satisfactory. Enforced disappearance needs to be considered as an autonomous and specific human rights violation. In 2005, dealing with the issue of the specific human rights violated by enforced disappearance, the Special Rapporteur of the Council of Europe, Mr. Pourgourides, observed that: The case law of the different human rights bodies is partly contradictory. Whilst the UN Human Rights Committee has taken the view that every prolonged incommunicado detention constitutes inhuman treatment, the European Court of Human Rights and the Interamerican Court of Human Rights have found a violation of Article 3 ECHR only in cases where there was evidence of torture or ill-treatment. By contrast, the Human Rights Chamber for Bosnia and Herzegovina followed the UN Human Rights Committee by declaring every case of enforced disappearance a violation of

15

16 17 18

IACHR, Case Velásquez Rodríguez v. Honduras, judgment of 29 July 1988 (Merits), para. 150. See supra 2.3.A. Ibid., para. 155. Ibid., para. 156. Ibid., para. 157.

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Article 3 ECHR. The approach followed by the European Court of Human Rights understands enforced disappearance only as an aggravated form of arbitrary detention, which does not reflect the extremely serious nature of this human rights violation. A future international instrument should therefore either establish a new, independent and non-derogable human right not to be subjected to enforced disappearance, or specify that every such act constitutes inhuman treatment in violation of Article 7 ICCPR and Article 3 ECHR.19

According to Article 1 of the 1992 Declaration, any act of enforced disappearance is: 1. An offence to human dignity. It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field. 2. Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life.

This statement, which has more a descriptive than a conceptual character, is to be understood in the light of the preamble, which provides the definition of an autonomous and complex violation: Persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.

This is the definition used by the United Nations Working Group on En-forced or Involuntary Disappearances in discharging its mandate. The same elements are reflected in the definition provided by the 1994 Interamerican Convention:

19

Report by Mr. Pourgourides, supra note 10, para. 48.


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The act of depriving a person or persons of his or her freedom, in whatever way, perpetrated by agents of the State or by persons or groups of persons acting with the authorization, support, acquiescence of the State, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees (Art. II).

In the 1996 Report the Working Group on Enforced or Involuntary Disappearances recommended that the following three elements should be contained in any definition of the offence: a) Deprivation of liberty against the will of the person concerned; b) Involvement of governmental officials, at least indirectly by acquiescence; c) Refusal to disclose the fate and whereabouts of the person concerned.20

While the first and the third element are typical of enforced disappearance, the second element seems common to any human rights violation. The 1998 Draft Convention defined enforced disappearances as: The deprivation of a person’s liberty, in whatever form or for whatever reason, brought about by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by an absence of information, or refusal to acknowledge the deprivation of liberty or information, or concealment of the fate or whereabouts of the disappeared persons. This Article is without prejudice to any international instrument or national legislation that does or may contain provisions of broader application, especially with regard to forced disappearances perpetrated by groups or individuals other than those referred to at paragraph 1 of this Article (Art. 1).

Within the above mentioned definitions three essential constitutive elements of the offence may be found: a) Deprivation of liberty against the will of the material victim; b) Refusal to acknowledge the detention or to disclose the fate and whereabouts of the person concerned; c) Direct or indirect involvement of State agents. As regards the first element, it is important to stress that the deprivation of liberty takes place against the will of a person. If a person voluntarily disappears for some private personal purposes, he cannot be considered

20

UNGWEID, Annual Report for 1995, E/CN.4/1996/38, 15 January 1996, para. 55.

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as a victim of an enforced disappearance. Nor can a person be considered as a victim if he voluntarily accepts to be deprived of his liberty and disappears in order to be infiltrated among prisoners or other people for intelligence purposes or to be protected from reprisals in the case of disclosure of information used in the fight against crime. For the purposes of the definition of the offence it is not important to specify how the deprivation of liberty was achieved, whether it was by arrest, detention or abduction, nor is it important to point out what has happened to the victim after the deprivation of liberty. The victim may be dead, because he was killed immediately (so called extra-judiciary or arbitrary executions), or he may be alive, because he is being held in secret detention (incommunicado detention) or has been secretly transferred abroad (extraordinary renditions). It can even happen that after having been legally detained for a certain period, the victim thereafter disappears. What is most important in order to seize the nature of enforced disappearance is the second element, that is the refusal by the authorities to disclose the fate and whereabouts of the disappeared person, even though they know what happened to him. Normally, people who have been arrested, either legally or even illegally, do not disappear, because the authorities acknowledge the arrest and disclose where the person is detained. The refusal to acknowledge the truth may take different forms which do not change the substance of the offence. For instance, the requested authorities may respond that they are not aware of the very existence of the disappeared person and where he can be or they can pretend that the disappeared person has joined the guerrillas or has departed for sentimental reasons or may have been detained by other authorities with which it is apparently impossible to communicate. The refusal to tell the truth determines the state of uncertainty which is typical of enforced disappearance. By its very nature, this offence lasts for as long as the status of uncertainty persists. The third element, that is the direct or indirect involvement of State agents, is common to every human rights violation. Here, it makes the difference between enforced disappearances and all the crimes which involve the abduction of a person by private individuals for various criminal purposes, such as the request of a ransom. The 1998 Rome Statute qualified “enforced disappearances” as crimes against humanity21 when committed as a part of a widespread or systematic

21

See infra 4.3.


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attack directed against any civilian population, with knowledge of the attack. This instrument of international criminal law defined enforced disappearances as: The arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time (Art. 7.2.i).

Two new elements can here be noted. First, the crime can be committed also by “a political organization”, which is something different from State agents or a group of persons acting with the acquiescence of the State. Second, the intention of removing the victim from the protection of the law for a prolonged period of time is required, without specifying how long-lasting a prolonged period of time is. The definition given in the 1998 Rome Statute is an undeniable step backwards from the point of view of the protection of the victims (a different conclusion may be reached from the point of view of the “protection” of the accused of the crime). Looking at the preparatory works, in April 1998 the report of the Preparatory Committee included “enforced disappearance of persons” among the crimes against humanity, even if with the suggestion that “more time was needed to reflect upon the inclusion”, and gave the following definition: ‘Enforced disappearance of persons’ means when persons are arrested, detained or abducted against their will by or with the authorization, support or acquiescence of the State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, thereby placing them outside the protection of the law.22

From the definition above it was clear that the placing of the victim outside the protection of the law was not a constitutive element of the crime, but a mere consequence of it, as the victim was deprived not only of his freedom but also of the legal remedies which are applicable to persons who have been arrested. However and for some unclear reasons, in July 1998 the report of the

22

A/CONF.183/2, 14 April 1998, in U.N., United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Official Records, vol. III, p. 21.

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Committee of the Whole provided for a different and worse definition.23 The latter became present Article 7.2.i of the 1998 Rome Statute. The definition of the 1998 Rome Statute was further developed by the “Elements of the Crime”, adopted by the Preparatory Commission for the International Criminal Court in 2000 and intended to assist the Court in the interpretation of the provisions defining genocide, crimes against humanity and war crimes:24 Article 7 (1) (i) Crime against humanity of enforced disappearance of persons25, 26 Elements 1. The perpetrator: (a) Arrested, detained27, 28 or abducted one or more persons; or (b) Refused to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons. 2. (a) Such arrest, detention or abduction was followed or accompanied by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such persons; or (b) Such refusal was preceded or accompanied by that deprivation of freedom. 3. The perpetrator was aware that:29 (a) Such arrest, detention or abduction would be followed in the ordinary course of the events by the refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons;30 or

23 24 25

26

27

28

29

30

A/CONF.138/8, 17 July 1998, ibid., p. 96. Report of the Preparatory Commission, PCNICC/2000/1/Add.2. “Given the complex nature of this crime, it is recognized that its commission will normally involve more than one perpetrator as a part of a common criminal purpose” (the footnote appears in the original text of the “Elements” as footnote No. 23). “This crime falls under the jurisdiction of the Court only if the attack referred to in elements 7 and 8 occurs after the entry into force of the Statute” (the footnote appears in the original text of the “Elements” as footnote No. 24). “The word ‘detained’ would include a perpetrator who maintained an existing detention” (the footnote appears in the original text of the “Elements” as footnote No. 25). “It is understood that under certain circumstances an arrest or detention may have been lawful” (the footnote appears in the original text of the “Elements” as footnote No. 26). “This element, uncertain because of the complexity of the crime, is without prejudice to the General Introduction to the Elements of Crimes” (the footnote appears in the original text of the “Elements” as footnote No. 27). “It is understood that, in the case of a perpetrator who maintained an existing detention, this


4. 5.

6. 7. 8.

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(b) Such refusal was preceded or accompanied by that deprivation of freedom. Such arrest, detention or abduction was carried out by, or with the authorization, support or acquiescence of a State or a political organization. Such refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such persons was carried out by, or with the authorization or support of such State or a political organization. The perpetrator intended to remove such person or persons from the protection of the law for a prolonged period of time. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

While it is true that the crime of enforced disappearance has a complex nature, the Elements of the Crime do not seem to clarify much of the content of the definition of the crime contained in Article 7.2.i of the 1998 Rome Statute. In particular, they merely repeat the questionable formula of the intention “of removing a person from the protection of the law for a prolonged period of time” without clarifying how “prolonged” this period should be. As already remarked, the intention to remove the victim from the protection of the law is an inherent consequence of the criminal action, in particular of the refusal to acknowledge the deprivation of liberty, rather than a constitutive element itself. One may wonder whether a crime of enforced disappearance might even be committed involuntarily and how long a prolonged period of time has to be. It is evident that if the whereabouts of a person deprived of liberty are not disclosed, he cannot avail himself of any effective legal remedy and is consequently placed outside the protection of the law. On the other hand, if the law of a certain State itself allowed the State to make persons legally disappear this would constitute a violation of human rights, even though the person might be considered within the “protection”, that is the scope of the law of that State.31 The time-factor

31

element would be satisfied if the perpetrator was aware that such a refusal had already taken place” (the footnote appears in the original text of the “Elements” as footnote No. 28). During the negotiations of the 2007 Convention some delegations expressed the “need to allow a certain amount of time to elapse between arrest and notification of the detention” (Report of the Intersessional Open-ended Working Group to Elaborate a Draft

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is not relevant to define the offence of enforced disappearance. While the offence has a continuous character,32 it cannot be linked to any intention referred to a predetermined duration. Once the offence is committed, its existence is not altered by the fact that it lasts a few hours or several years. The combination of the intention and the duration places an almost impossible burden of proof on the prosecutor of the International Criminal Court or, in other contexts, on the relatives of the victims. The formula used by the 1998 Rome Statute, if wrongly interpreted, can reduce the threshold of protection against the crime of enforced disappearance.33 If those responsible had only the intention to make the victim disappear for a limited period of time, they could plead innocence if, nevertheless, the deprivation of the liberty and the lack of information about the fate and whereabouts of the victim were protracted for a longer period. Considered as a whole, the definition of enforced disappearance established under the 1998 Rome Statute does not seem a good instance to be taken as a model in human rights instruments and must be limited to the purpose of the Statute itself that is to conduct trials on those accused of enforced disappearance before the International Criminal Court. Such a definition can provide little substantive help when the purpose is a broader one that is to ensure an adequate protection to the victims of this serious crime.34

32 33

34

Legally Binding Normative Instrument for the Protection of All Persons from Enforced Disappearance, E/CN.4/2004/59, 23 February 2004, para. 22). “Others, however, pointed out that an enforced disappearance could be carried out from the moment of arrest, if there was a refusal to acknowledge a deprivation of liberty. The definition of enforced disappearances would also be less precise, owing to the vague and unspecific nature of the expression ‘prolonged period of time’. Several participants, emphasizing the new instruments’ aim of prevention and early warning, considered that it was important to confer on the persons concerned and the national and international monitoring bodies the ability to intervene as soon as the deprivation of liberty began, without the need to wait for a certain period to elapse” (ibid., para. 23). See infra 4.6. F. Andreu Guzmán, “The Draft International Convention on the Protection of All Persons from Forced Disappearance”, supra note 8, p. 85. As noted by some States participating in the negotiations for the 2007 Convention, the 1998 Rome Statute is an instrument of a different nature. “In particular, its purpose was to grant the International Criminal Court the power to hear cases involving enforced disappearances which constituted crimes against humanity. The purpose of the future instrument, in contrast, was to offer the broadest possible protection for all persons against enforced disappearances, including those which did not constitute crimes against


277

In his 2002 report on the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance, the independent expert Mr. Manfred Nowak noted that: The subjective elements of guilt seem, however, to put an extremely heavy burden on the prosecution to prove that the individual perpetrator was aware from the very beginning of committing the crime that the deprivation of liberty would be followed by its denial and that he (she) intended to remove the victim from the protection of the law for a prolonged period of time.35 The perpetrators usually only intend to abduct the victim without leaving any trace in order to bring him (her) to a secret place for the purpose of interrogation, intimidation, torture or instant but secret assassination. Often many perpetrators are involved in the abduction and not everybody knows what the final fate of the victim will be. In any case, if criminal law is to provide an effective instrument of deterrence, the definition of enforced disappearance in domestic criminal law, as required by a future international instrument, has to be broader that that included in the ICC Statute.36

In 2005 the Special Rapporteur of the Council of Europe pointed out that: The subjective element may be difficult to prove in practice, knowing that often many perpetrators are involved in the abduction and not every one knows in advance what the final fate of the victim shall be. Therefore, if criminal law is to be an effective deterrence, the definition of enforced disappearance in a future international instrument should do without such a subjective element.37

Accordingly, the Parliamentary Assembly of the Council of Europe adopted Resolution 1463 (2005) on enforced disappearance pointing out that any future binding definition of the offence: [. . .] should not include a subjective element, which would be too difficult to prove in practice. The inherent difficulties in proving an enforced disappearance should be met by the creation of a rebuttable presumption against the responsible State officials involved.38

35 36 37 38

humanity. A wider definition of enforced disappearances would help in achieving that objective” (E/CN.4/2004/59, supra note 31, para. 18). Report by Mr. Nowak, supra note 2, para. 69. Ibid., para. 74. Report by Mr. Pourgourides, supra note 10, para. 47. Council of Europe, Parliamentary Assembly Resolution 1463 (2005), 3 October 2005, para. 10.1.2.

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The 1998 Rome Statute introduced another relevant innovation concerning the possible authors of enforced disappearances. While all previous international and regional instruments concurred in defining enforced disappearance as a policy of State, committed by State agents or by persons or groups of persons acting with the authorization, support or acquiescence of the State (that is paramilitary groups or indirect State agents, such as private contractors), the Statute introduced the mention of “political organization”.39 The question of a broad or narrow concept of enforced disappearance, as far as the possible perpetrators are concerned, deserves careful scrutiny. A broad concept seems to be preferred if the tragic condition of the victim is considered. To be abducted and made disappear by State authorities, paramilitary groups, rebel groups or criminal organizations does not change the suffering and the state of anguish the person is subjected to. On the issue of enforced disappearances carried out by non-State actors, the Special Rapporteur of the Council of Europe pointed out that: Experience shows that enforced disappearances are committed not only by government officials, but also by indirect State actors such as members of the paramilitary groups, death squads, guerrilla movements fighting alongside, or against the government, as well as by members of organized criminal gangs. As the concealment of all facts surrounding the crime is part of its definition, it is often impossible to know whether the perpetrators acted with or without the acquiescence of the State. In order to ensure full protection from enforced disappearance, a future binding instrument should therefore equally apply to State and organized non-State actors.40

Accordingly, in Resolution 1463 (2005) it was stated that: The definition of enforced disappearance should be wide enough to cover such acts also when they are committed by non-State actors, such as paramilitary groups, death squads, rebel fighters or organized criminal groups.41

On the contrary, a narrow concept of enforced disappearance seems preferable if questions of principle are taken into account. The notion of human rights is linked to the condition of State agents do not respect rights which are granted to private individuals. If a private individual violates a right

39

40 41

Indeed, the preamble of the 1992 Declaration refers to “organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the government”. Report by Mr. Pourgourides, supra note 10, para. 46. Resolution 1463 (2005), supra note 38, para. 10.1.1.


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granted to another private individual, the matter arising from this action falls within domestic criminal law and must be punished as such. However, it does not constitute a violation of human rights under international law. If this assumption is right, the only question is to determine in what cases we have State actors or groups which can substantively be compared to State actors, such as those acting with the authorization, acquiescence or support of State actors. Only in these cases we have a violation of international human rights law. If, instead, the crime is committed by criminal organizations which can never be compared to any kind of State actors, the State is under an obligation to prevent, investigate and sanction crimes of domestic criminal relevance. If this obligation is not complied with, the State may be held responsible for a violation of judicial guarantees and the right to judicial protection of the victim, but not for the act itself of enforced disappearance. Otherwise the very fundamental concept of human rights, as linked to an illegal action or omission by the State, would be diluted. A further element of discussion derives from the fact that, especially in certain regions of the world, cases of disappearance perpetrated by members of rebel groups have been reported. Historically, enforced disappearances have been committed as a part of State policies and the usual perpetrators were members of the army, official security forces or paramilitary groups. However, the situation is now changing, as also reported in 2004 by the United Nations Working Group on Enforced or Involuntary Disappearances: In the context of internal armed conflict, opposition forces have reportedly perpetrated enforced disappearances. While the mandate of the Working Group is limited to violations carried out by State actors or their agents, it notes that the act of enforced disappearance is often the source of further cycles of violence, regardless of the perpetrator.42

Indeed the mention of enforced disappearances carried out by non-State actors having no link with the State (different from paramilitary groups) represented the most debated issue during the whole drafting process of the 2007 Convention. In general, representatives of relatives of disappeared persons were strongly opposed to any mention of non-State actors, arguing that disappearance has historically been and continues to be a State practice. In fact while this holds true in the case of most Latin American countries, the situation is different as regards disappearances carried out

42

UNGWEID, Annual Report for 2004, E/CN.4/2005/65, 23 December 2004, para. 11.

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in some Asian countries, where also insurrectional movements are allegedly involved in the crime. At the beginning of the negotiations, the majority of States, recalling the nature of a human rights treaty of the forthcoming instrument, expressed the desire not to mention in any way non-State actors, as it would be difficult to determine what obligations State Parties had with regard to their behaviour.43 Even though the kidnapping of people is a serious offence, a treaty on human rights imposes obligations on States Parties and does not address criminal offences committed by private individuals.44 However, some States45 did insist for the inclusion of such a mention. As a consequence of the difference of positions, three options were considered: – – –

Not mentioning non-State actors at all; Mentioning them in the definition of the offence as possibleperpetrators; Including a separate article or paragraph stating that, in cases of enforced disappearance committed by non-State actors, States Parties have the obligation to take all necessary measures to ensure that such acts constitute an offence under their criminal law, as well as to carry out an impartial, prompt and thorough investigation and, if possible, to prosecute and sanction those found to be responsible.

The definition of the offence finally adopted by the 2007 Convention reads as follows:

43

44

45

In 2002, in his oral presentation to the United Nations High Commissioner for Human Rights, Mr. Manfred Nowak expressed the view that: “[. . .] The definition of enforced disappearance should go beyond the traditional Human Rights concept of referring exclusively to State agents. If the focus of a future binding instrument will be on domestic criminal jurisdiction as in the case of the United Nations Convention against Torture and the 1992 Declaration, the definition should also encompass nonState actors, similar to the one in the International Criminal Court Statute” (United Nations High Commissioner for Human Rights, 26 March 2002, Oral Presentation of the Report submitted by Mr. Manfred Nowak on the international legal framework for the protection of persons from enforced disappearance, pursuant to para. 11 of Commission Resolution 2001/46). See also Report by Mr. Nowak, supra note 2, para. 73. Some delegations pointed out that a reference to non-State actors “would alter the traditional framework of responsibility in relation to human rights” (E/CN.4/2004/59, supra note 31, para. 31). Namely the delegations of the Russian Federation, India and Angola.


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For the purposes of this Convention, enforced disappearance is considered to be the arrest, detention, abduction or any other form of deprivation of liberty committed 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 and whereabouts of the disappeared person, which places such a person outside the protection of the law (Art. 2).

Generally speaking, the 2007 Convention does not seem to depart from the customary rules on internationally wrongful acts which determine when a conduct is to be considered as an act of the State. This happens when the conduct in question can be referred to any person or body that has the status of State organization or is acting in that capacity, even if the conduct exceeds his authority or contravenes instructions, or is in fact acting in the exercise of elements of governmental authorities.46 Besides, a conduct is considered an act of a State if the latter acknowledges and adopts the conduct in question as its own. In the case of enforced disappearances, this rule can be interpreted in a broad sense, as including all cases in which State authorities knowingly take advantage of acts of enforced disappearance, even without officially acknowledging such acts. The conduct of an insurrectional movement which, under a responsible command, exercises an effective control over a part of the territory of the State can be attributable to that State if the movement becomes the new government of the State or it succeeds in establishing a new State in a part of the territory of the State against which it was fighting. But nothing prevents the attribution of acts of enforced disappearances to the insurrectional movement itself, for as long as it exists. Any explicit reference to non-State actors has been removed from the definition of the offence. They are mentioned in a separate provision of the 2007 Convention: Each 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 (Art. 3).

At the moment of adoption of the 2007 Convention by the Third Committee of the General Assembly, the Philippines stated that, while the definition of enforced disappearances extends only to States, States could 46

See Chapter II (Arts. from 4 to 11) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted in 2001 by the International Law Commission.

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still criminalize such acts in accordance with national legislation and could also assign responsibility to non-State actors outside their effective control. While its interpretation did not derogate the responsibility to protect from the State, the Philippines would have liked to see the Convention reflect the reality that a significant portion of disappearances were committed by non-State groups.47 Indeed, the statement by the Philippines reflects Article 3 of the 2007 Convention, which not only enables, but also binds States Parties to investigate and sanction those non-State actors found to be responsible for acts of enforced disappearance. As regards the other elements under discussion, the definition embodied in the 2007 Convention does not include any explicit reference to intentionality48 and time limits.49 Furthermore, the 2007 Convention, by using the wording “in any other form”, does not enter into a qualification of the legal, arbitrary or illegal nature of the deprivation of liberty. The element of “placement outside the protection of the law” is formulated in a rather ambiguous way which does not clarify whether it is an autonomous element of the offence or a simple consequence of the existence of an enforced disappearance. This choice mirrors the different views that emerged during the negotiation process and has been considered as a form of “constructive ambiguity”. However, the ambiguity of the last part of the definition, while perhaps useful to conclude the negotiation with an agreed outcome, may lead to undesirable interpretations. At the moment of the adoption of the text of the Convention by the Intersessional Open-ended Working Group, the delegation of Argentina said that the fact that any person subjected to enforced disappearance was placed “outside the protection of the law” was inherent in such 47 48

49

GA/SHC/3872, supra note 7. During the negotiations, some delegations “pointed out that national criminal laws required the presence of an element of intent in the commission of crimes” (E/ CN.4/2004/59, supra note 38, para. 24). Others stressed that intent was difficult to prove and that the element of criminal intent was implicit in the definition (ibid., para. 25). At the moment of adoption of the draft of the 2007 Convention in Geneva, the delegation of the United States of America expressed “serious concern about Article 2, which we firmly believe needs a more focused definition that includes the element of intentionality. This is the core of the Convention and we believe it needs a great deal more work” (See Report of the Intersessional Open-ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of All Persons from Enforced Disappearance, E/CN.4/2006/57, 2 February 2006, paras. 94–96, and Annex II).


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disappearance and resulted from the three elements making it up, namely, deprivation of liberty, State responsibility and concealment of the fate or whereabouts of the disappeared person. The phrase “which places such a person outside the protection of the law” could not be construed as an additional constituent element of the crime of enforced disappearance.50 When the 2007 Convention has been adopted by the Third Committee of the General Assembly, the representative of India pointed out that certain drawbacks remained in the text. For instance, it would have been preferable if “intent” had been more clearly incorporated in the definition of “enforced disappearance” as mens rea is an essential element for criminalization of any act51 and that the “constructive ambiguity” in the definition creates two different standards of proof for the same crime, one in the 2007 Convention and one in the 1998 Rome Statute.52 The United States of America pointed out, in the note verbale submitted to the Secretariat of the Human Rights Council on the text of the 2007 Convention, that the final text did not represent the consensus of all the members of the Intersessional Open-ended Working Group53 and underscored that:

50

51

52 53

On the same occasion, the delegations of China, Egypt and the United Kingdom said that, according to their interpretation, the fact of a person’s being placed outside the protection of the law was not a consequence of the three preceding elements of the definition but a fourth element of the definition. The United Kingdom also said that, according to its interpretation, the deprivation of liberty or the detention of the person was not covered by the rules relating to deprivation of liberty or detention, insofar as those rules were not in accordance with applicable international law (E/CN.4/2006/57, supra note 49, paras. 91–92). However, several delegations which opposed the incorporation into the definition of the element of intent, “emphasized that their domestic criminal law always provided for a general intent (dol general), and there was no need for the instrument to mention it. Removal from the protection of the law was simply a consequence of disappearance and should not be regarded as an additional element of the intent (dol special )” (Report of the Intersessional Open-ended Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of All Persons from Enforced Disappearance, E/CN.4/2005/66, 10 March 2005, para. 25). Ibid. However, on 23 September 2005, the final version of the Draft Convention for the Protection of All Persons from Enforced Disappearance was approved by consensus by the Intersessional Open-ended Working Group. The representatives of the United States of America did not formally oppose it.

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The definition of the crime would have been much improved had it been more precise and included and required an explicit requirement for intentionality, particularly the specific intent to place a person outside the protection of the law (emphasis added). The need for intentionality was recognized by the Chair and recorded in paragraph 96 of the Report, which states that an intentionality requirement is implicit in the definition of an enforced disappearance, recognizing that “in no penal system was there an offence of enforced disappearance without intent”. We agree and reaffirm our understanding that under the Convention mens rea is an essential ingredient of the crime, under Articles 2, 4, 6 (particularly under 6.2, 12.4, 22, 25 and other Articles).54

The statement by the United States is far from being convincing. It could be interpreted as providing a justification to States which make people disappear where enforced disappearance does not always constitute an offence under their domestic criminal law (Art. 4), or where agents obey an order or instruction from any public authority (Art. 6.2), or where their domestic law is construed in such a way that it does not prevent and sanction acts that hinder the conduct of investigations (Art. 12.4), or where it delays or obstructs remedies available to persons deprived of their liberty or allows a refusal to provide information on the deprivation of liberty of a person (Art. 22), or where it does not prevent and punish the wrongful removal of children or the falsification, concealment or destruction of documents attesting the true identity of the disappeared children (Art. 25). This would be in complete contradiction with the object and purpose of the 2007 Convention. Indeed, mens rea is not given by the intent to place a person outside the protection of the law, but by the mere intent to make the person disappear, irrespective of what domestic law provides. If enforced disappearances were allowed by domestic law, at least in certain cases (for instance for security reasons), it seems evident that the mentioned domestic law must be disregarded and the 2007 Convention must be applied in its place. The content of the domestic law can never be an excuse to plead that there was a lack of mens rea in those State agents who committed or contributed to an act of enforced disappearance. On the same issue, the United Kingdom stated that: The United Kingdom notes that the placing of a person outside the protection of the law is an important element of the definition of an enforced disappearance, additional to its other elements. As such, the United Kingdom considers that the definition of an enforced disappearance in Article 2 comprises the

54

A/HRC/1/G/1, supra note 7.


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following elements: first, an arrest, detention, abduction or any other form of deprivation of liberty, second, that such acts are committed by agents of the State or by persons or groups acting with the authorization, support or acquiescence of the State; third, that the act is followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person; and fourth that the disappeared person is placed outside the protection of the law. The United Kingdom understands the term “outside the protection of the law” to mean that the person’s deprivation of liberty or detention is not within the scope of relevant domestic legal rules governing deprivation of liberty or detention, or that those rules are not compatible with applicable international law.55

Here the “placement outside the protection of the law”, which is considered as a fourth constitutive element of the offence and not as a consequence, is presented in a less questionable manner. First, no mens rea is required. Second, compliance with domestic legal rules is envisaged insofar as they are compatible with applicable international law (that is the 2007 Convention itself if the United Kingdom becomes a Party to it). Irrespective of how it is interpreted, references to the definition contained in Article 2 can already be found in the most recent international judiciary practice.56

4.3 Enforced Disappearance as a Crime against Humanity The inclusion of enforced disappearance among the crimes against humanity carries significant legal consequences, relating inter alia to individual and State responsibility, universal jurisdiction, the obligation to extradite or try those responsible for the crime, the inapplicability of statutes of limitation, amnesties, pardons and similar measures and the obligation of States to cooperate at the international level in the investigation, judgment and sanctioning of the crime.57

55

56

57

GA/SHC/3872, supra note 7. On the same occasion, Japan said that it supported the United Kingdom’s interpretation of “enforced disappearance” as consisting of four elements. IACHR, Case Gómez Palomino v. Perú, judgment of 22 November 2005, supra 2.3.S. In particular, the attached concurring vote of Judge S. García Ramírez, paras. 14 and 15. See also Case Goiburú and others, supra note 4, para. 179. See, inter alia, F. Lafontaine, “No Amnesty or Statute of Limitation for Enforced Disappearances: The Sandoval Case before the Supreme Court of Chile”, in Journal

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The first recognition of the nature of “crime against humanity” of enforced disappearances was formulated, in 1981, at the Paris Colloquium convened by the Human Rights Institute of the Paris Bar Association. The project of a convention against enforced disappearance drawn up on that occasion stated that: The practice of forced or involuntary disappearance constitutes a crime against humanity.58

Here, what constitutes a crime against humanity is a practice. However, how many single acts constitute a practice? If a crime is so serious as to constitute an offence to human dignity, is there any difference if one or many people are affected by the crime? When facing the most serious human rights violations perpetrated by State agents, it is questionable whether the condition of being committed as part of a “practice” should be retained. If genocide can, by its very nature, only be a “practice”, other serious human rights violations, such as torture or enforced disappearance, may also occur as single instances. One case alone of these violations is equally repugnant to the concept of human dignity as many cases and should therefore be qualified as a crime against humanity. The international recognition of enforced disappearances as a crime against humanity has been one of the main purposes of the action of associations of relatives of disappeared persons. In 1982 the project of Convention drafted by FEDEFAM provided that: The forced disappearance of persons constitutes a crime under international law and a crime against humanity.

Here, also a single act of enforced disappearance can qualify as a crime against humanity. At the intergovernmental level, within the Interamerican context, the General Assembly of the OAS, in 1983 stated as follows in Resolution AG/RES.666 (XIII-0/83): The practice of enforced disappearance in the Americas is an affront to the conscience of the Hemisphere and constitutes a crime against humanity (para. 4).

58

of International Criminal Justice, 2005, pp. 469–484; and United Nations, General Assembly Resolution 3074 (XXVIII), 3 December 1973, United Nations Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes against Humanity. Le Refus de l’oubli, supra note 11.


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As stated in Resolution 828/1984 of the Parliamentary Assembly of the Council of Europe: Considering that the recognition of enforced disappearance as a crime against humanity is essential if it is to be prevented and its authors punished. [. . .] i. Enforced disappearance is a crime against humanity.59

In 1986, in Bogotá, the participants to the First Colloquium on Forced Disappearances in Colombia convened by the non governmental organization José Alvear Restrepo Lawyers Collective agreed on the following wording: Forced or involuntary disappearances of persons constitute crimes against humanity, which States must undertake to prevent and punish without exceptions of any kind.60

At the judicial level, the Interamerican Court of Human Rights, since its first judgments on the issue, found that International practice and doctrine have often categorized disappearances as a crime against humanity, although there is no treaty in force which is applicable to the States Parties to the Convention and which uses this terminology.61

In a judgment delivered in 2004 the Interamerican Court more directly stated that enforced disappearance is a crime against humanity without specifying any conditions.62 Furthermore, in a judgment delivered in 2006 on four cases of enforced disappearances which took place in the context of Operación Condor, the Court considered it as a systematic practice of State terrorism and this determined an aggravated responsibility of the respondent State.63

59 60

61

62

63

Resolution 828/1984, supra note 14, paras. 12 and 13.a.i. W. Tayler, “Background to the Elaboration of the Draft International Convention for the Protection of All Persons from Forced Disappearance”, supra note 8, p. 68. IACHR, Case Godínez Cruz v. Honduras, judgment of 20 January 1989 (Merits), para. 161. See supra 2.3.B. IACHR, Case 19 Comerciantes v. Colombia, judgment of 5 July 2004, para. 142. See supra 2.3.P. “Durante la década de los setenta los servicios de inteligencia de varios países del Cono Sur del continente americano conformaron una organización inter-estatal con fines criminales complejamente articulada, [. . .]; es decir, se dio una práctica sistemática de ‘terrorismo de Estado’ a nivel inter-estatal” (IACHR, Case Goiburú and others, supra note 4, para. 72). “During the Seventies the intelligence services of several countries of the South Cone of the American continent established an articulated inter-State organization with criminal intents [. . .]; which is to say that

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All the above mentioned instances do not specify any further qualification of enforced disappearance, be it systematic, massive or widespread, to be included in the category of crime against humanity. However, during the process of drafting subsequent legal instruments on enforced disappearances, especially when of a binding nature, the condition of the systematic and widespread character of enforced disappearance has been harshly debated. The result has been that enforced disappearance is now considered as a crime against humanity only in cases where a widespread or systematic practice occurs. A condition relating to the dimension of practice was introduced by the 1992 Declaration, which, in its preamble states: That enforced disappearance undermines the deepest values of any society committed to respect for the rule of law, human rights and fundamental freedoms, and that the systematic practice of such acts is of the nature of a crime against humanity.

Originally, this consideration was included in the body of the instrument. Due to fierce resistance on the part of certain States, it was moved to the preamble.64 The 1992 Declaration does not expressly mention all the consequences stemming from the qualification of crime against humanity. For instance, it does not mention at all the imprescriptibility of enforced disappearances as crimes against humanity.65 Since 1992, the formula “systematic practice” has become the standard for the recognition of enforced disappearances as crimes against humanity. Within the Interamerican system this new approach was retained while drafting the 1994 Interamerican Convention, which makes an explicit reference to the matter in the preamble: Reaffirming that the systematic practice of the forced disappearance of persons constitutes a crime against humanity.

The sentence included in the preamble is not adequately echoed anywhere in the body of the instrument. Imprescriptibility of the offence is not provided for in any of the articles of the Convention either.

64

65

there was a systematic practice of “State terrorism” (unofficial translation by the authors). See also paras. 66, 82 and the concurring opinions of Judge S.G. Ramírez, paras. 16–30, and of Judge A.A. Cançado Trindade, paras. 9–33 and 50–53. W. Tayler, “Background to the Elaboration of the Draft International Convention for the Protection of All Persons from Forced Disappearance”, supra note 8, p. 69. In general, on the subject of statute of limitations applied to enforced disappearances, see infra 4.5.


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Neither the 1992 Declaration nor the 1994 Interamerican Convention provide with clarifications on the extent of the wording “systematic practice”. In commenting the 1996 draft Code of Crimes against the Peace and Security of the Mankind, the International Law Commission stated that the formula “systematic or large-scale”66 implies two alternative conditions, such that an act could constitute a crime against humanity if either of these conditions is met.67 There is no need for both conditions to concur (even though one can wonder what the difference between systematic and large-scale is). Relevant considerations on the relation between individual responsibility from crimes against humanity and the existence of a “widespread systematic attack” have been expressed by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadic case: Clearly a single act by a perpetrator taken within the context of a widespread systematic attack against a civilian population entails individual criminal responsibility and an individual perpetrator need not commit numerous offences to be held liable . . . Even an isolated act can constitute a crime against humanity if it is the product of a political system based on terror or prosecution.68

Further support to the same approach was expressed by the Appeals Chamber of the ICTY in the same case: [. . .] as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity. As such, an individual committing a crime against a single victim or a limited number of victims might be recognized as guilty of a crime against humanity if his acts were part of the specific context identified above.69

These considerations shall be taken into account also when reading the relevant provision of the 1998 Rome Statute.

66

67 68

69

Report of the International Law Commission on the Work of its Forty-eight Session, in U.N., Yearbook of the International Law Commission, 1996, vol. II, Part 2, p. 47. Report of the International Law Commission, supra note 66, pp. 101–102. ICTY, Case Prosecutor v. Tadic, No. IT–94–1, judgment of the Trial Chamber of 7 May 1997, para. 623. The Tadic case did not relate to enforced disappearances. ICTY, Case Prosecutor v. Tadic, No. IT–94–1, judgment of the Appeals Chamber of 15 July 1999, para. 248, footnote 311. This principle had already been stated in the case Prosecutor v. Mile Mrksic et al., No. IT–95–13–R61, Trial Chamber I, 3 April 1996, para. 30.

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Looking at the preparatory works for the 1998 Rome Statute, the Draft Code of Crimes against Peace and Security of Mankind, adopted in 1996 by the International Law Commission, listed “forced disappearance of persons” among the crimes against humanity (Art. 18.i).70 In the commentary, the International Law Commission, recalling the 1992 Declaration and the 1994 Interamerican Convention, explained that Although this type of criminal conduct is a relatively recent phenomenon, the Code proposes its inclusion as a crime against humanity because of its extreme cruelty and gravity.71

The inclusion of the crime of enforced disappearance in the 1998 Rome Statute72 was explicitly supported by Costa Rica (“in view of the deplorable experience of Latin America”),73 Chile (“as it was still a means of repression by authoritarian regimes”),74 France,75 Jordan,76 Mexico.77 The United Kingdom stated that, although enforced disappearance was not yet accepted as a crime against humanity in existing instruments, it “would be happy to see it included if the definition was clear”.78 For Syria, the wording enforced disappearance of persons “was unclear because it could be used in reference to liberation movements fighting for their freedom and to regain their territory”.79 An isolated position was expressed by India that “was not in favour of including enforced disappearance of persons in the list of crimes against humanity”.80 The final text of the 1998 Rome Statute includes “enforced disappearance of persons” among the crimes against humanity (Art. 7.1.i) “when

70 71 72

73

74 75 76 77 78 79 80

Report of the International Law Commission, supra note 66. Ibid., p. 50. See K. Hall, Enforced Disappearance of Persons, in O. Triffterer (ed.), Commentary of the Rome Statute of the International Criminal Court, Baden-Baden, 1999, p. 151; R.S. Clark, Crimes against Humanity and the Rome Statute of the International Criminal Court, in M. Politi, G. Nesi (eds.), The Rome Statute of the International Criminal Court – A Challenge to Impunity, Aldershot, 2001, p. 86. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Official Records, vol. II, p. 77. Ibid., p. 157. See also p. 88. Ibid., p. 150. Ibid., p. 151. Ibid., p. 152. Ibid., p. 150. Ibid., p. 147. The purpose of this statement does not seem clear. Ibid., p. 148. The position of India raised the immediate objections by Costa Rica (ibid.) and France (ibid., p. 150).


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committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. The precedent of the 1998 Rome Statute did not prevent discussions on the issue of enforced disappearances as crimes against humanity during the drafting of the 2007 Convention. The 1998 Draft Convention addressed the issue of the nature of the offence of enforced disappearance as a crime against humanity both in the preamble and in a specific provision: Considering that forced disappearance undermines the deepest values of any society committed to the respect of the rule of law, human rights and fundamental freedoms, and that the systematic practice of such acts constitutes a crime against humanity (preamble). 1. The systematic or massive practice of forced disappearance constitutes a crime against humanity. 2. Where persons are suspected of having perpetrated or participated in an offence, as defined in Articles 1 and 2 of this Convention, they should be charged with a crime against humanity where they knew or ought to have known that this act was part of a systematic or massive practice of forced disappearances, however limited the character of their participation (Art. 3).81

The 1998 Draft Convention proposed two concurring criteria for qualifying an act of enforced disappearance as a crime against humanity: one objective that is the existence of a widespread practice; and the other subjective, that is the knowledge of the systematic character of the said practice.82 Accordingly, the 1998 Draft Convention provided for the relevant consequences, namely that: The States Parties undertake to adopt the necessary legislative measures to define [forced disappearance of persons as] a crime against humanity, as defined in Article 3 of this Convention, as separate offences, and to impose an appropriate punishment commensurate with their extreme gravity (Art. 5). No statutory limitation shall apply to criminal proceeding and any punishment arising from enforced disappearance, when the forced disappearance constitutes a crime against humanity, in accordance with Article 3 of this Convention (Art. 15.1).

81

82

Para. 2 of Article 3 of the 1998 Draft Convention deserves consideration as presenting a rather peculiar structure. While intended to be an article of an international instrument of human rights law, it somehow provided for criteria to determine the existence of criminal responsibility. By this means, the provision resulted as being of a hybrid nature and risked establishing ambiguous standards. F. Andreu Guzmán, “The Draft International Convention on the Protection of All Persons from Forced Disappearance”, supra note 8, p. 86.

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During the meetings of the Intersessional Open-ended Working Group that drafted the 2007 Convention, notwithstanding the recognition of the nature of crimes against humanity of enforced disappearances within both the European and the Interamerican contexts and the significant number of precedents at the international level, the introduction of a specific mention to the issue met with strong resistance from a number of States. On the contrary, non governmental organizations, relatives of the disappeared, many Latin American countries and some European countries83 insisted for a reference to the notion of crimes against humanity as a minimum requirement when drafting a convention against enforced disappearance. The outcome of the debate led to a generic mention in the preamble and to the introduction of a specific provision in the body of the instrument: Aware of the extreme seriousness of enforced disappearance, which constitutes a crime and, in certain circumstances defined in international law, a crime against humanity (preamble). The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law (Art. 5).

The 2007 Convention does not take any definite position about the cases where enforced disappearance is defined as a crime against humanity by applicable international law. It may be implied that the 1998 Rome Statute is the “applicable international law” referred to, even if no specific mention is made to it (probably because some States do not intend to ratify it). However, the use of the word “applicable” envisages the possibility of further developments in international law. This may hopefully lead to the consideration of any act of enforced disappearance, irrespective of the existence of a widespread or systematic practice, as a crime against humanity.84 A reference to the widespread or systematic character of the practice of enforced disappearances can also be found in Article 34, which establishes a particular competence of the Committee on Enforced Disappearances:85

83 84

85

Namely: Argentina, Bolivia, Chile, Colombia, Costa Rica, Mexico, Italy, Spain and Belgium. In this sense Article 37 of the 2007 Convention is also relevant: “Nothing in this Convention shall affect any provisions which are more conductive to the protection of all persons from enforced disappearance and which may be contained in: a) the law of a State Party; b) international law in force for that State”. The provision will be further referred to infra 4.15.


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If the Committee receives information which appears to it to contain well-founded indications that enforced disappearance is being practised on a widespread or systematic basis in the territory under the jurisdiction of a State Party, it may, after seeking from the State Party concerned all relevant information on the situation, urgently bring the matter to the attention of the General Assembly of the United Nations, through the Secretary General of the United Nations (Art. 34, emphasis added).

When the text of the 2007 Convention was adopted by the Third Committee of the General Assembly of the United Nations, the representative of New Zealand made the statement that nothing in the Convention should be seen to undercut or reinterpret already existing international law. Moreover, in Article 5, the definition of enforced disappearance as crime against humanity differed from established international law. New Zealand would interpret the Article consistently with its understanding of already existing international law.86

However, the contrary might also be said. While the 2007 Convention is not an instrument to interpret or to change the 1998 Rome Statute, the latter could not be used as an instrument to interpret or to change the 2007 Convention. While the 1998 Draft Convention contained a provision establishing that: “this Convention does not exclude any jurisdiction exercised by an international criminal tribunal” (Art. 6.2), any such clear reference has been deleted from the 2007 Convention following harsh debates during the negotiations. Furthermore, the representative of the United States of America noted that: Article 5 requiring criminalization of crimes against humanity is vague, aspirational in nature and inappropriate as an operative treaty provision. [. . .] Article 5 would not create any additional obligations on States to accede to particular instruments or amend their domestic legislation.87

One may wonder how the qualification of the widespread and systematic practice of enforced disappearance as crimes against humanity can be seen as “vague and aspirational”. A completely different issue is the reluctance of certain States to accept treaty provisions, such as the 1998 Rome Statute, which would compel them to try persons accused of crimes against humanity, especially if they happen to be their own citizens or agents.

86 87

GA/SHC/3872, supra note 7. A/HRC/1/G/1, supra note 7.

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As regards present States’ practice, some instances are relevant for the purpose under consideration. In the 2005 Report the United Nations Working Group on Enforced or Involuntary Disappearances denounced that: Reports expressed concern about a widespread pattern of enforced or involuntary disappearances, said to be one of the most pressing human rights issues in Nepal. [. . .] The Working Group found that the phenomenon of disappearance in Nepal was widespread, its use by the Nepalese security forces was arbitrary.88

On the situation of enforced disappearances in the Russian Federation, the Working Group noted that: According to the reports, enforced disappearances in Chechnya are both widespread and systematic.89

In the case of Colombia, after a visit to the country, the Working Group reported the existence of a “widespread pattern” of disappearances.90 Furthermore, the Commission for Reception, Truth, and Reconciliation in East Timor91 has recently found in its Final Report that: Members of the Indonesian security forces and their auxiliaries committed and condoned widespread and systematic extra-judicial executions and enforced disappearances during the period of the Indonesian occupation of Timor-Leste.92 In addition to the executions of individuals and small groups, the Indonesian security forces and their auxiliaries carried out a widespread and systematic campaign of killings and disappearances directed at surrendered and captured members of Fretilin and Falintil. The Commission finds that these killings and disappearances were carried out as part of a systematic plan, devised at the highest levels of the military command structure and coordinated by newly-created Korem under the command of then Colonel Adolf Sahala Rajagukguk, whose purpose was to eliminate surviving leaders of the Resistance movement.93

88

89 90

91 92

93

UNGWEID, Annual Report for 2005, E/CN.4/2006/56, 27 December 2005, paras. 378 and 386. Ibid., para. 452. UNGWEID, Report of the UNGWEID – Mission to Colombia, E/CN.4/2006/56/Add.1, 17 January 2006, para. 51. See supra 1.8. Final Report of the Truth and Reconciliation Commission for Timor-Leste, Chega!, Jakarta, 2005, chapter on “Unlawful Killings and Enforced Disappearances”, p. 63. Ibid., p. 64.


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Throughout the occupation Indonesian military commanders ordered, supported and condoned systematic and widespread unlawful killings and enforced disappearances of thousands of civilians in Timor-Leste. [. . .] Without full disclosure, the Indonesian military continue to perpetuate and support acts of enforced disappearances.94

Considering the continuing nature of the offence, all this kind of information should be taken into account by the forthcoming Committee on Enforced Disappearances and also by other international bodies, in particular, the International Criminal Court, at least in cases where their respective competences could be exercised.95

Codification, Jurisdiction, Extradition and Investigation

4.4 4.4.A

Codification of the Offence under Domestic Criminal Law

Article 4 of the 1992 Declaration imposes on States Parties the obligation to codify enforced disappearances as continuous offences under domestic criminal law that are punishable by appropriate penalties which shall take into account their extreme seriousness. According to the General Comment on Article 4 of the United Nations Working Group on Enforced or Involuntary Disappearances: This obligation applies to all States, regardless of whether acts of enforced disappearance actually take place or not. It is not sufficient for governments to refer to previously existing criminal offences relating to enforced deprivation of liberty, torture, intimidation, excessive violence, etc. In order to comply with Article 4 of the Declaration, the very act of enforced disappearance as stipulated in the Declaration must be made a separate criminal offence.96

94 95

96

Ibid., p. 71. At present, among the mentioned countries, Colombia ratified the 1998 Rome Statute on 5 August 2002 and East Timor did so on 6 September 2002. The Russian Federation signed the 1998 Rome Statute on 13 September 2000. General Comment of the UNGWEID on Article 4, E/CN.4/1996/38, supra note 20, para. 54. See also Report by Mr. Pourgourides, supra note 10, paras. 53 and 55: “The absence of appropriate provisions in many national criminal codes or their restrictive formulation makes the prosecution of perpetrators of enforced disappearances very difficult in practice. [. . .] A future binding instrument on enforced disappearances should address these issues, by placing an obligation on States to enact relevant criminal legislation and

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As pointed out in the same comment, States are not bound to follow strictly the same definition for the offence of enforced disappearance. However, they shall ensure that it is defined in a way that clearly distinguishes it from related offences such as murder, kidnapping or deprivation of liberty.97 Under Article III of the 1994 Interamerican Convention, States Parties shall adopt the legislative measures that may be needed to define the forced disappearance of persons as an offence and to impose an appropriate punishment commensurate with its extreme gravity. In several judgments, the Interamerican Court of Human Rights ordered to respondent States to codify in their domestic criminal codes the offence of enforced disappearance or to bring already existing codifications in accordance with international standards on the subject.98 Following Article 5.1 of the 1998 Draft Convention, the 2007 Convention links the establishment of an autonomous human right not to be subjected to enforced disappearance99 to the obligation of the States Parties to define a specific offence in their domestic legislation. As required by the 2007 Convention: Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law (Art. 4). Each State Party shall make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness (Art. 7.1).100

At the moment of adoption of the 2007 Convention, the delegation of the United States of America, made the following declaration:

97

98

99 100

to take appropriate measures to protect those pressing charges against perpetrators from reprisals”. In its 2005 Report the UNGWEID has noted that: “Preliminary analysis reveals that outside of Latin America, very few States have created a specific criminal offence of enforced or involuntary disappearances. In total, only eight countries have created a separate offence. Of these, only one is outside of Latin America” (E/CN.4/2006/56, supra note 88, para. 48). IACHR, Case Trujillo Oroza v. Bolivia, judgment of 27 February 2002 (Reparations), supra 2.3.M; Case Gómez Palomino, supra note 56; Case Blanco Romero and others v. Venezuela, judgment of 28 November 2005, supra 2.3.T; and Case Goiburú and others, supra note 4. See supra 4.1. The 1998 Draft added that the “death penalty shall not be imposed in any circumstances” (Art. 5.1). The 2007 Convention does not make any reference to the issue of the death penalty.


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Article 4 should not be read to require our various domestic legal systems to enact an autonomous offence of enforced disappearance, which is unnecessary and, from a practical standpoint, extremely burdensome and unworkable in the United States.101

The Chairperson of the Intersessional Open-ended Working Group, Mr. Bernard Kessedjian, said that it was difficult to accept such an interpretation.102 A similar remark could be made also as regards the statement made by China, namely that it did not interpret Article 4 as imposing on States the obligation to make enforced disappearance a separate offence under its domestic legislation, and the statement made by Iran, namely that it interpreted the article as not imposing new obligations on States which could punish enforced disappearance under existing criminal law.103 As noted during the negotiations, to establish an independent offence constitutes “an invitation to grasp the specificity and complexity of the offence of enforced disappearance, which may not be reduced to a combination of discrete actions”.104 Article 4 of the 1992 Declaration provides for the possibility to include mitigating circumstances in national legislation for those responsible for enforced disappearance. There is no mention of possible aggravating circumstances in the case of a disappearance resulting in the death of the victim or in cases where the disappeared person pertains to particularly vulnerable categories. Also the 1994 Interamerican Convention (Art. III) and the 1998 Draft Convention (Art. 5.2) only mentioned the possibility to establish mitigating circumstances. The 2007 Convention allows for both mitigating105 and aggravating circumstances: The States Parties may establish: a) Mitigating circumstances, in particular for persons who, having been implicated in the commission of an enforced disappearance, effectively contribute to bringing the disappeared person forward alive or make it possible to clarify cases of enforced disappearance or to identify the perpetrators of an enforced disappearance;

101 102 103 104 105

E/CN.4/2006/57, supra note 49, Annex II; and A/HRC/1/G/1, supra note 7. E/CN.4/2006/57, supra note 49, para. 101. Ibid., para. 102. E/CN.4/2004/59, supra note 31, para. 49. The delegation of Canada stated that Article 7.1 could not be “interpreted in such a way that mitigating circumstances effectively amounted to an amnesty or granted impunity to those responsible for enforced disappearance” (E/CN.4/2006/57, supra note 49, para. 112).

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b) without prejudice to other criminal procedures, aggravating circumstances, in particular in the event of the death of the disappeared person or the commission of an enforced disappearance in respect of pregnant women, minors, persons with disabilities or other particularly vulnerable persons (Art. 7.2).

4.4.B

Superior Orders

As many instruments of international human rights and international criminal law, also the 2007 Convention includes provisions on the issues of the responsibility of either the superior who gave orders (Art. 6.1)106 or the subordinate who executed orders (Art. 6.2). The second issue in particular was the subject of some substantive discussions. The 1992 Declaration provides, in Article 6, that orders or instructions received from public authorities, whether civilian or military, may not be invoked to justify an act of enforced disappearance. It also provides that the training of law enforcement officials shall emphasize the impossibility of invoking a superior order to justify an enforced disappearance as well as the fact that any person receiving such an illicit order shall have the right and duty not to obey it. By the same token, the 1994 Interamerican Convention establishes that: The defence of due obedience to superior orders or instructions that stipulate, authorize, or encourage forced disappearance shall not be admitted. All persons who receive such orders have the right and the duty not to obey them. The State Parties shall ensure that the training of public law enforcement personnel or officials includes the necessary education on the offence of forced disappearance of persons (Art. VIII).

The 1998 Draft contained a detailed provision as regards the inadmissibility as a justification of an order to carry out an enforced disappearance. No order or instruction of any public authority – civilian, military or other – may be invoked to justify a forced disappearance. Any person receiving such an order or instruction shall have the right and duty not to obey it. Each State shall prohibit orders or instructions commanding, authorizing or encouraging a forced disappearance. Law enforcement officials who have reason to believe that a forced disappearance has occurred or is about to occur shall communicate the matter

106

See Article 6.2 of the 1992 Declaration, Article 2 of the 1998 Draft Convention and Article 28 of the 1998 Rome Statute.


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to their superior authorities and, when necessary, to competent authorities or organs with reviewing or remedial power (Art. 9.1).

Indeed the 2007 Convention, while substantially reproducing the key concept, splits it between two different provisions. No order or instruction from any public authority, civilian, military or other, may be invoked to justify an offence of enforced disappearance (Art. 6.2). 2. Each State Party shall ensure that orders or instructions prescribing, authorizing or encouraging enforced disappearance are prohibited. Each State Party shall guarantee that a person who refuses to obey such an order will not be punished. 3. Each State Party shall take the necessary measures to ensure that the persons referred to in paragraph 1 who have reasons to believe that an enforced disappearance has occurred or is planned report the matter to their superiors and, where necessary, to the appropriate authorities or organs vested with reviewing or remedial powers (Art. 23).

Article 6.2 of the 2007 Convention does not list the three exceptions that according to Article 33.1 of the 1998 Rome Statute may relieve the subordinate from his criminal responsibility.107 At the moment of the adoption of the 2007 Convention by the Third Committee of the United Nations General Assembly, New Zealand made a statement related to the broader context of consistency between the 1998 Rome Statute and the 2007 Convention.108 On Article 6.2 of the 2007 Convention, the United States noted that: Article 6.2 on the unavailability of a defence of obedience to superior orders in a prosecution related to enforced disappearances could under certain circumstances be inconsistent with due process guarantees and could subject unwitting government personnel to the possibility of prosecution for actions

107

108

Article 33.1: “The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful”. On this subject see also Economic and Social Council, Principles to Combat Impunity, E/CN.4/2005/102/Add.1, 8 February 2005, principle 27. New Zealand interpreted the relevant principle of international law contained in the Convention consistently with established international law, both customary law and law contained in major international instruments to which it was party, including the 1998 Rome Statute (GA/SHC/3872, supra note 7).

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that they did not and could not know were prohibited. Therefore, [. . .] the United States interprets Article 6.2 to establish no criminal responsibility on an individual unaware of participating in the commission of an enforced disappearance.109

4.4.C

Jurisdiction and Extradition

A number of articles of the 2007 Convention deal with the issues of jurisdiction and extradition in a rather detailed way, as the technical nature of this kind of provision requires. The 1992 Declaration did not refer to the issue of jurisdiction in cases of enforced disappearance. According to Article IV of the 1994 Interamerican Convention, a State Party shall take measures to establish its jurisdiction over offences of enforced disappearance in three cases, namely: a) when the enforced disappearance of persons was committed within its jurisdiction; b) when the accused is a national of that State; and c) when the victim is a national of that State and it sees fit to do so. Regrettably, Article IX.3 of the same convention provides that privileges, immunities, or special dispensations are not admissible in trials relating to enforced disappearances, “without prejudice to the provisions set forth in the Vienna Convention on Diplomatic Relations”.110 Following the model of Article 6 of the 1998 Draft Convention,111 Article 9.1 of the 2007 Convention provides that a State Party exercises jurisdiction over those accused of enforced disappearance in three cases, namely: (a) When the offence is committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is one of its nationals;

109 110 111

A/HRC/1/G/1, supra note 7. This exception is not repeated in the 2007 Convention. Article 6: “[. . .] Consequently, each State Party shall take the necessary measures to establish jurisdiction in the following instances: (a) When the offence of forced disappearance was committed within a territory under its jurisdiction; (b) When the alleged perpetrator or the other alleged participants in the offence of forced disappearance [. . .] are in the territory of the State Party, irrespective of the nationality of the alleged perpetrator or the other alleged participants, or of the nationality of the disappeared person, or of the place or territory where the offence took place unless the State extradites them or transfers them to an international criminal tribunal”. In general, on the issue of jurisdiction of international and internationalized criminal tribunals, see Principles to Combat Impunity, supra note 107, principles 20–21.


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(c) When the disappeared person is one of its nationals and the State Party considers it appropriate.

While in the first two cases the exercise of jurisdiction is compulsory, in the third case it is left to the discretion of the State concerned. No provision in the 2007 Convention addresses the question of the so-called universal jurisdiction intended in its most radical meaning, that is jurisdiction that could be exercised irrespective of any link between a State, on the one hand, and the place where the offence has been committed, the accused or the victim, on the other.112 The issue of universal jurisdiction was mentioned in 2002 by Mr. Manfred Nowak in his oral presentation to the Commission on Human Rights, as one of the gaps and ambiguities existing in the legal framework on enforced disappearance.113 In 2005, following the report by Mr. Pourgourides,114 the Parliament Assembly of the Council of Europe adopted Resolution 1463 (2005) stating that an international instrument on enforced disappearances Should include the following safeguards against impunity: [. . .] extension of the principle of universal jurisdiction of all acts of enforced disappearance.115

Article 9.2 of the 2007 Convention allows for a sort of universal jurisdiction116 at least in cases where the alleged perpetrator is in the territory of a State Party:117

112

113

114 115 116

117

The 1994 Interamerican Convention does not make any reference to universal jurisdiction. Indeed, the Convention was drafted and adopted at a time when this subject had not been sufficiently developed yet under international law. “The most important gap is the lack of a binding obligation to make sure that enforced disappearance is a crime under domestic law with appropriate penalties, and that the principle of universal jurisdiction applies to the crime” (Oral Presentation of the Report submitted by Mr. Manfred Nowak, supra note 44). See also Report by Mr. Nowak, supra note 2, para. 82: “The principle of universal jurisdiction shall apply to any act of enforced disappearance”. Report by Mr. Pourgourides, supra note 10, paras. 56–57. Resolution 1463 (2005), supra note 38, para. 10.3.2. This kind of jurisdiction, which requires the existence of some links between the State and the person accused of the crime, has also been called “quasi-universal jurisdiction”. In this sense, E/CN.4/2004/59, supra note 31, para. 82. Also Article 6.1.b of the 1998 Draft Convention allowed for universal jurisdiction in cases where the alleged perpetrator was in the territory of a State Party. The UNGWEID noted that: “The principle of universal jurisdiction [proposed in the draft Convention] is drafted in a much clearer manner than in comparable treaties, including the Convention against Torture” (E/CN.4/2001/68, Annex III, 18 December 2000, para. 34).

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Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offence of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to another State in accordance with its international obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized.118

Article 9.3 of the 2007 Convention provides for an even broader exercise of jurisdiction if a State Party deems it appropriate to do so: This Convention does not exclude any additional criminal jurisdiction exercised in accordance with national law.

As regards extradition, which implies the presence of the alleged offender in the territory of the requested State, the 1994 Interamerican Convention (Art. V) provides for a rather detailed regime. It makes enforced disappearance an extraditable offence to be included in every extradition treaty already concluded or to be concluded between States Parties. If there is no such a treaty, the convention itself becomes the necessary legal basis for extradition. Enforced disappearance cannot be considered a political offence for the purposes of extradition. The Interamerican Court of Human Rights referred to the subject of the extradition of people accused of enforced disappearance in two judgments,119 underlining the nature and seriousness of the facts and recalling that the need to eradicate impunity constitutes an obligation of interstate cooperation. Accordingly, the Court ordered to respondent States and, in general, to States Parties to the American Convention on Human Rights to undertake all necessary measures not to let such grave violations go unpunished by exercising their jurisdiction to judge and, as the case may be, to sanction those responsible, or by extraditing the persons accused. The relevant provisions of the 1994 Interamerican Convention are adequate to ensure that no one charged with the offence will be able to escape punishment by fleeing to the territory of another State Party. They

118

119

Article 6.2 of the 1998 Draft Convention provided that: “This Convention does not exclude any jurisdiction exercised by an international criminal tribunal”. The United States of America proposed the deletion of paragraph 2 of Article 9 of the 2007 Convention and said that it would not consider itself bound by the provision under any circumstances (E/CN.4/2006/57, supra note 49, para. 217). IACHR, Case Goiburú and others, supra note 4, paras. 130–132; and Case La Cantuta v. Peru, judgment of 29 November 2006, paras. 158–160, supra 2.3.W.


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are repeated with minor changes in Article 13 of the 2007 Convention.120 The latter however establishes an exceptional case where extradition can be denied, if the person accused of enforced disappearance could be subjected to persecution for a number of reasons: Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the requested State Party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of the person’s sex, race, religion, nationality, ethnic origin, political opinions or membership of a particular social group, or that compliance with the request would cause harm to that person for any of these reasons (Art. 13.7).

If extradition is not granted, the State Party is bound to exercise its jurisdiction on the alleged offender (aut dedere aut judicare), as set forth in the 1992 Declaration (Art. 14), the 1994 Interamerican Convention (Art. IV.2 and VI) and the 2007 Convention (Art. 11.1).121 The latter provides as follows: The State Party in the territory under whose jurisdiction a person alleged to have committed an offence of enforced disappearance is found shall, if it does not extradite that person or surrender him or her to another State in accordance with its international obligations or surrender him or her to an international criminal tribunal whose jurisdiction it has recognized, submit the case to its competent authorities for the purpose of prosecution.

Article 11.1 allows for the possibility to surrender the accused not only to another State, but also to an international criminal tribunal.122 While not excluding ad hoc international courts which might be established under a treaty or a decision by the Security Council, this is an implicit reference to the jurisdiction of the International Criminal Court. A different instance is that of a person who could be subjected to enforced disappearance if extradited or otherwise surrendered to another State. The 1992 Declaration prohibits the expulsion, extradition or refoulement of persons to States where there are substantial grounds for believing that such persons would be in danger of enforced disappearance (Art. 8). Rather surprisingly, the 1994 Interamerican Convention does not address the issue. Under Article 16 of the 2007 Convention:

120 121 122

See also Article 12 of the 1998 Draft Convention. See also Article 6 of the 1998 Draft Convention. For obvious chronological reasons a similar provision cannot be found in the 1994 Interamerican Convention.

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1. No State Party shall expel, return (“refouler”), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.123

The broad scope of Article 16.2 is remarkable. Also a pattern of serious violations of international humanitarian law or of human rights which are different from enforced disappearance (for example, genocide) could justify the denial of extradition or surrender. 4.4.D

Criminal Investigations over Enforced Disappearances

The obligations of a State where it is alleged that a person has been subjected to enforced disappearance were already indicated in Article 13 of the 1992 Declaration. While such a provision is not repeated in the 1994 Interamerican Convention,124 the obligations in question are further specified in the 2007 Convention. Any individual has the right to report the facts to the competent authorities who are bound to examine the allegation promptly125 and impartially and, where necessary, to undertake an investigation without delay (Art. 12.1). The word “individual” may be easily interpreted as referring also to non governmental organizations. Indeed, an investigation must be undertaken even if there has been no formal complaint, but reasonable grounds exist for believing that a person has been the victim of an enforced disappearance (Art. 12.2).

123

124

125

The United States proposed an additional paragraph, according to which the benefit of Article 16 “may not, however, be claimed by a person whom there are reasonable grounds for regarding as a danger to the security of the country in which he or she is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country” (E/CN.4/2006/57, supra note 49, para. 125). The proposal was based on Article 33.2 of the 1951 Convention Relating to the Status of Refugees. Several delegations recalled that Article 16 was directly inspired by Article 3 of the Convention against Torture and that its scope was different from that of Article 33.2 of the Refugees Convention (ibid., para. 127). The IACHR substantively developed this subject in its case law. See, inter alia, Case La Cantuta, supra note 119, paras. 133–157. “Immediately” instead of “promptly” according to Article 11.1 of the 1998 Draft Convention.


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To carry out an effective investigation, it is provided that the authorities in charge of it must have the necessary powers and resources, have access to the relevant documentation, information,126 as well as to any place of detention or other place where there are reasonable grounds for believing that the disappeared person may be present (Art. 12.3). If necessary, the right of access to such places is subject to the prior authorization of a judicial authority which shall rule promptly on the matter.127 Two provisions of the 2007 Convention (Arts. 12.1 and 12.4) address the situation of all those who can be involved in the investigation on the side of the victim, such as the complainant, relatives, witnesses, legal counsels and people participating in the investigation. They must be protected from pressure, intimidation, ill-treatment or reprisals. However, the 2007 Convention does not reproduce or dilutes some provisions of the 1998 Draft Convention relating to the important issue of the right of legal standing: The States Parties guarantee a broad legal standing in the judicial process to any wronged party, or any person or national or international organization having a legitimate interest therein (Art. 10.4). The findings of a criminal investigation shall be made available upon request to all persons concerned, unless doing so would gravely hinder an ongoing investigation. However, the competent authority shall communicate regularly and without delay to the relatives of the disappeared persons the results of the inquiry into the fate and whereabouts of that person (Art. 10.6). It must be possible to conduct an investigation, in accordance with the procedures described above, for as long as the fate or whereabouts of the disappeared person have not been established with certainty (Art. 11.7). The alleged perpetrators of and other participants in the offence of forced disappearance or other acts referred to in Article 2 of this Convention shall be suspended from any official duties during the investigation (Art. 11.8).128

126

127

128

“Some delegations proposed that access to documents and other information should be subject to judicial authorization and to certain restrictions having chiefly to do with national security” (E/CN/.4/2005/66, supra note 51, para. 63). Article 11.4 of the 1998 Draft Convention established that: “Each State Party shall ensure that the competent authority has access, without delay or prior notice, to any place, including those classified as being places of national security or of restricted access, where it is suspected that a victim of enforced disappearance may be held”. This provision ensured a better protection to the victims than Article 12.3 of the 2007 Convention. The 2007 Convention does not explicitly refer to suspension from official duties during investigations for an alleged enforced disappearance.

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4.5


Statute of Limitations

Under customary international law, crimes against humanity are imprescriptible.129 Article 29 of the 1998 Rome Statute provides that “crimes within the jurisdiction of the Court shall not be subject to any statute of limitation”. As regards enforced disappearance, Resolution 828/1984 of the Parliamentary Assembly of the Council of Europe provides in general that: Enforced disappearance is a crime against humanity, which: [. . .] 2. is not subject to limitation.130

However, not all cases of enforced disappearance constitute crimes against humanity. Despite the general wording of Resolution 828/1984, all other international legal instruments and judicial decisions relating to enforced disappearance make a distinction between a widespread and systematic practice and single cases of disappearance. For the time being, only the crimes of those who are responsible of a widespread and systematic practice are imprescriptible under international law and must, consequently, be considered as imprescriptible even under domestic legal systems. If only single cases occur, a statute of limitations may apply. In cases where it is applicable, the statute of limitations must take into account the seriousness of the offence to which it applies. Those responsible for the latter shall not benefit from a regime which goes to the detriment of the victims and of justice in general. Under Article 17.3 of the 1992 Declaration: Statutes of limitations, where they exist, relating to acts of enforced disappearance shall be substantial and commensurate with the extreme seriousness of the offence.

Article VII of the 1994 Interamerican Convention sets forth an even more rigorous regime, providing that the period of limitation, if any, shall be equal to that which applies to the gravest crimes:

129

130

United Nations, General Assembly Resolution 2391 (XXIII), Non Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 26 November 1968. On enforced disappearances as crimes against humanity, see supra 4.3. See also IACHR, Case Almonacid Arellano and others v. Chile, judgment of 26 September 2006, Ser. C No. 154, para. 153. Resolution 828/1984, supra note 14, para. 13.a.i.2.


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Criminal prosecution for the forced disappearance of persons and the penalty judicially imposed on its perpetrator shall not be subject to statutes of limitations. However, if there should be a norm of a fundamental character preventing application of the stipulation contained in the previous paragraph, the period of limitation shall be equal to that which applies to the gravest crime in the domestic laws of the corresponding State Party.

This provision means that if, under a domestic legislation, any other crime becomes imprescriptible, also enforced disappearance must be considered as such. Under Article 16 of the 1998 Draft Convention: 1. No statutory limitation shall apply to criminal proceedings and any punishment arising from forced disappearances, when the forced disappearance constitutes a crime against humanity, in accordance with Article 3 of this Convention. 2. When the forced disappearance does not constitute a crime against humanity in accordance with Article 3 of this Convention, the statute of limitation for the offence and the criminal proceedings shall be equal to the longest period laid down in the law of each State Party. [. . .]

In his 2002 report, Mr. Nowak expressed the view that, in the light of the particularly serious nature of the crime of enforced disappearance, no statutory limitation shall apply to such a crime.131 Principle 23 of the United Nations Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (hereinafter referred to as “Principles to Combat Impunity”), recommended on 21 April 2005 by the United Nations Commission on Human Rights (Resolution 2005/81), mirrors the position of the victims: Prescription shall not apply to crimes under international law that are by their nature imprescriptible. When it does apply, prescription shall not be effective against civil or administrative actions brought by victims seeking reparation for their injuries.

Principles 6 and 7 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (hereinafter referred to as “Principles on Reparation”), adopted on 16 December 2005 by the United Nations General Assembly (Resolution 60/147) establish: 131

Report by Mr. Nowak, supra note 2, para. 82.

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Where so provided for in an applicable treaty or contained in other international legal obligations, statutes of limitations shall not apply to gross violations of international human rights law and serious violations of international humanitarian law which constitute crimes under international law. Domestic statutes of limitations for other types of violations that do not constitute crimes under international law, including those time limitations applicable to civil claims and other procedures should not be unduly restrictive.

In his 2005 report Mr. Pourgourides listed the “existence of short statutory limitation periods” among the factors favouring impunity in cases of enforced disappearance.132 Under Article 8 of the 2007 Convention: Without prejudice to Article 5, 1. A State Party which applies a statute of limitation in respect of enforced disappearance shall take the necessary measures to ensure that the term of limitation for criminal proceedings: a) Is of a long duration and proportionate to the extreme seriousness of this offence [. . .].

The reference to Article 5 ensures that no statute of limitations applies to all enforced disappearances amounting to crimes against humanity. Nonetheless, it is regrettable that any reference to the longest period of limitation provided for in domestic legislation has been omitted. During the negotiations, one delegation asked that “the future instrument should specify that the provisions relating to the statute of limitations could not constitute an obstacle to the right to compensation”.133 Regrettably, this proposal was not retained. At the moment of adoption of the final draft of the 2007 Convention, the United States delegation stated that it could not support the provision concerning the statute of limitations, in view, among other reasons, of its federal system.134 On the contrary, Italy declared that it would have

132 133 134

Report by Mr. Pourgourides, supra note 10, para. 58. E/CN.4/2004/59, supra note 31, para. 70. E/CN.4/2006/57, supra note 49, para. 114 and Annex II. This statement is hardly acceptable if it means that the United States, being a federal country, cannot commit itself with regard to certain provisions included in an international treaty. If so, the United States should simply leave the negotiation when these kinds of provisions are discussed, in order to be replaced by its federated member States which are entitled to commit themselves in lieu of the United States. Indeed, the provisions of the 2007 Convention “shall apply to all parts of federal States without any limitations or exceptions” (Art. 41).


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preferred a specific provision to exclude the statute of limitations in respect of the crime of enforced disappearance.135 Another important issue related to the statute of limitations is the possibility of a suspension, to prevent those responsible for the offence from benefiting from the period during which effective remedies were unavailable to the victims. Article 17.2 of the 1992 Declaration provides that: When the remedies provided for in Article 2 of the International Covenant on Civil and Political Rights are no longer effective, the statute of limitations regarding acts of enforced disappearance shall be suspended until these remedies are re-established.

The 1994 Interamerican Convention does not make any express reference to the suspension of the statute of limitations as long as domestic remedies are not effective. Under Article 16.2, of the 1998 Draft Convention: [. . .] When the remedies described in Article 2 of the International Covenant on Civil and Political Rights are no longer effective, the prescription for the offence of enforced disappearance shall be suspended until the efficacy of these remedies has been restored.

Under Article 8.2 of the 2007 Convention: Each State Party shall guarantee the right of victims of enforced disappearance to an effective remedy during the term of limitation.

This provision may well be interpreted in the sense that the statute of limitations shall be suspended as long as the victim of enforced disappearance is not granted an effective remedy.

4.6

The Continuous Nature of the Offence

Linked to the issue of statute of limitations, but not limited to it, is the question of the continuous nature of the offence. When does the offence of enforced disappearance cease and, consequently, when does the statute of limitations, if applicable, start?

135

Ibid., Annex II. Also Cuba “said that the instrument should state unequivocally that the crime of enforced disappearance was not subject to a statute of limitation” (E/ CN.4/2006/57, supra note 49, para. 116).

310


The recognition of the continuous nature of enforced disappearance comes from the very nature of the offence, in particular from the denial by the State to disclose what happened to the victim.136 The offence is not an instantaneous one and cannot cease at the moment when the victim is deprived of his liberty. Instead, this is only the beginning, as the offence lasts longer, much longer in many cases. It does not result whether the victim has been killed. He could reappear after some time (even though, unfortunately, this is not what happens in most cases). What is important is that the State, which knows the truth, does not tell it and does not contribute towards the establishment of the truth. This means that, for as long as the fate and whereabouts of the disappeared person remain unknown, the offence is ongoing. In 1979 Mr. Felix Ermacora submitted to the General Assembly of the United Nations a report on the question of the fate of missing and disappeared persons in Chile, where he expressed the consideration that the disappearance of thousands of persons constituted “a continuous situation of violations of human rights”.137 The continuous nature of enforced disappearance was acknowledged for the first time by an international body in 1983, when the Human Rights Committee delivered its views in the Quinteros v. Uruguay case.138 The Committee found that the offence commences when the person disappears and continues until his fate and whereabouts are established with certainty. During all this time, when the enforced disappearance and human rights violations connected to it have a continuous character, no statute of limitations may be applied. Other views subsequently rendered by the Committee confirmed this principle. On this issue, Article 17.1 of the 1992 Declaration provides that: Acts constituting enforced disappearance shall be considered a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remain unclarified.

In 2000 the United Nations Working Group on Enforced or Involuntary Disappearances adopted a General Comment on this provision, observing that: 136

137

138

See, inter alia, P. Dijkstra, H. Klann, R. Ruimschotel, M. Wijnkoop, Enforced Disappearances as continuing violations, Amsterdam, 2002. United Nations, General Assembly, Report of Mr. Felix Ermacora on Disappeared Persons in Chile, A/34/583/Add.1, 21 November 1979, para. 178. HRC, Case Quinteros v. Uruguay, Communication No. 107/1981, 21 July 1983, supra 2.2.B.


311

The sense and general purpose of the Article is to ensure conditions such that those responsible for acts constituting enforced disappearance are brought to justice within a restrictive approach to statutory limitations. [. . .] The definition of “continuing offence” (para. 1) is of crucial importance for establishing the responsibilities of the State authorities. [. . .] The interpretation of Article 17 must be consistent with the provisions of Articles 1.1, 2.1, 3 and 4 of the Declaration, which seek to punish these crimes severely in order to eradicate the practice.139

Article III of the 1994 Interamerican Convention provides that: [. . .] The offence shall be deemed continuous or permanent as long as the fate or whereabouts of the victims has not been determined.

At the judicial level, the Interamerican Court of Human Rights has recognized the continuing nature of the offence since its very first judgment on the issue. In the case Velásquez Rodríguez v. Honduras, it defined disappearance as “a multiple and continuous violation of many rights under the Convention that the States Parties are obligated to respect and guarantee”.140 In 1998, in the leading case Blake v. Guatemala,141 the Court derived from the continuing nature of the offence the obligation upon the respondent State to investigate until the whereabouts of the victim were established.142 In a separate concurring opinion, Judge Cançado Trindade wrote that the offence was a “continuing situation” inasmuch as it was committed not instantaneously and extended over the entire period of the disappearance.143 In 2000 the European Court of Human Rights also recalled and applied the principle of the continuing nature of the offence of enforced disappearance in the case Timurtas v. Turkey.144 The 1998 Draft Convention addressed the issue in two different provisions. Article 5.1 set forth in general the principle of the continuous character of the offence: [. . .] This offence is continuous and permanent as long as the fate or whereabouts of the disappeared person have not been determined with certainty.

139 140 141

142 143 144

E/CN.4/2001/68, supra note 117, paras. 27, 28 and 32. IACHR, Case Velásquez Rodríguez, supra note 15, para. 155. IACHR, Case Blake v. Guatemala, judgment of 24 January 1998 (Merits), supra 2.3.I. Ibid., para. 181. Ibid., concurring opinion of Judge A.A. Cançado Trindade, para. 9. ECHR, Case Timurtas v. Turkey, judgment of 13 June 2000, supra 2.4.C.

312


Article 16.2 dealt with the question of the starting moment of the statute of limitations: When the forced disappearance does not constitute a crime against humanity in accordance with Article 3 of this Convention, the statute of limitation for the offence and the criminal proceedings shall be equal to the longest period laid down in the law of each State Party, starting from the moment when the fate or whereabouts of the disappeared person is established with certainty.

In his 2002 report Mr. Nowak stressed that any binding international instrument on disappearances should provide that “any act of enforced disappearance shall be considered a continuing crime as long as the perpetrators continue to conceal the fate and whereabouts of the disappeared person and the facts that remained unclarified”.145 In his 2005 report Mr. Pourgourides pointed out that: The crime of enforced disappearance does not cease until the fate of the disappeared person is established – also concerning prescription and competence ratione temporis.146

Accordingly, in Resolution 1463 (2005), the Parliamentary Assembly of the Council of Europe considered as an essential point to be included in the new United Nations instrument as a safeguard against impunity: [The] recognition of enforced disappearance as a continuing crime, as long as the perpetrators continue to conceal the fate of the disappeared person and the facts remain unclarified; consequently, non-application of statutory limitation periods to enforced disappearances.147

Notwithstanding the existence of well established principles at both legislative and judicial level, the question of the continuous offence of enforced disappearance raised extended debates during the negotiations for the 2007 Convention. They resulted in Article 8, which provides as follows: Without prejudice to Article 5, 1. A State Party which applies a statute of limitation in respect of enforced disappearance shall take the necessary measures to ensure that the term of limitation for criminal proceedings:

145 146 147

Report by Mr. Nowak, supra note 2, para. 82. Report by Mr. Pourgourides, supra note 10, para. 21. Resolution 1463 (2005), supra note 38, para. 10.3.3.


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a) Is of a long duration and proportionate to the extreme seriousness of this offence; b) Commences from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature.

The explicit reference to the continuing nature of the offence is a positive achievement. However, the provision does not mention explicitly that, in order to apply any statute of limitations, the establishment of the fate and whereabouts of the material victim is needed. This introduces an element of ambiguity and may allow restrictive interpretations. The continuous character of the offence of enforced disappearance has an influence also on the procedural question of the determination ratione temporis of the competence of international bodies. The rule is that, even if the victim was deprived of his liberty before the acceptance of the competence by the State concerned, the competence exists if such acceptance occurred during the subsequent period when the fate and whereabouts of the victim remained unknown. For instance, the Human Rights Chamber for Bosnia Herzegovina148 has constantly applied the principle of the continuing nature of the offence of enforced disappearance, in order to declare its competence also for cases of disappearance which took place before the critical date of 14 December 1995, where the fate and whereabouts of the victims were still unknown and the effects of the crime were ongoing. Nevertheless, looking at the practice of international bodies,149 at least in one instance (Yurich v. Chile),150 the “procedural” aspect of the continuous character of the offence was surprisingly neglected by the Human Rights Committee.151 148 149

150

151

See supra 2.5. In the case Hermanas Serrano Cruz decided in 2005 by the IACHR, the point under discussion related more to the admissibility of a reservation made by El Salvador than to the existence ratione temporis of the competence of the Court: IACHR, Case Hermanas Serrano Cruz v. El Salvador, judgment of 23 November 2004 (Preliminary Objections), supra 2.3.Q. HRC, Case Yurich v. Chile, Communication No. 1078/2002, 12 December 2005, supra 2.2.O. Ibid., dissenting opinion of C. Chanet, R. Lallah, M. O’Flaherty, E. Palm and H. Solari Yrigoyen. Two years before the declaration of inadmissibility in the Yurich case, in a substantially identical instance (the disappearance of the victim had occurred prior to the entry into force of the Optional Protocol for the respondent State), the HRC, rejecting the ratione temporis objection, delivered its views on the case: see HRC, Case Jegatheeswara Sarma v. Sri Lanka, Communication No. 950/2000, 31 July 2003, supra 2.2.N.

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Article 35 of the 2007 Convention provides that the Committee on Enforced Disappearances is competent solely in respect of enforced disappearances which commenced after the entry into force of the instrument. In this case the restrictive approach, however regrettable, is clear.152

4.7

Competence of Military or Special Courts

As already remarked, in the majority of cases enforced disappearances have been carried out as a systematic practice by members of the regular armies, trained to avail themselves of enforced disappearance as a practicable counter-insurgency strategy, particularly effective in instilling terror in the general community, disrupting the lives of the families of the victim. Historically, the military have been the ones properly equipped in order to carry out enforced disappearances on a systematic scale. In this intent they have been facilitated by the fact that, even in the hypothesis they were charged with offences connected to enforced disappearances, they were usually tried by military tribunals or special courts, and, if tried, acquitted in almost all cases. In other words, general impunity was obtained. In Latin American countries, for instance, it has been frequent that those appointed to judge military personnel charged with the offence of enforced disappearance had been their direct superior officers in the operations considered to have led to the disappearance of people. Even in cases where members of paramilitary groups accused of enforced disappearances were tried before military courts, impunity was the most likely result of the trial. Moreover, alleged “subversives” were frequently brought to be tried before military tribunals, sometimes constituted by anonymous judges ( jueces sin rostro).153 The proceedings carried out by these military chambers,

152

153

On the declaration made by Argentina, Chile and Italy, relating to the continuous nature of the offence and the competence of the monitoring body created by the 2007 Convention, see infra 4.15. As an example of this practice, Guatemala may be taken as a reference. According to the Final Report of the Truth Commission for Guatemala (the CHC), under the dictatorship of General Efraín Ríos Montt special tribunals were established which were composed of “jueces sin rostro” (anonymous judges), who could be civilians as well as members of the army. They were designated directly by the dictator, who could decide their territorial competence and even extend case by case the number of the offences


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which did not respect the principles of fair trial, often involved people who were victims of enforced disappearance. The Human Rights Committee, although without specific reference to cases of enforced disappearance, has analyzed the compatibility of military courts with the principles of fair trial as established under relevant international instruments of human rights law (mainly the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights).154 The conclusion has been that military tribunals do not satisfy the necessary standards of impartiality.155 In 1998 the United Nations Working Group on Arbitrary Detention recommended clear rules on military tribunals, when it considered that if some of the military justice is to continue, it should observe four conditions: – –

It should be incompetent to try civilians; It should be incompetent to try military personnel if the victims include civilians; – It should be incompetent to try civilians and military personnel in the event of rebellion, sedition or any offence that jeopardizes or involves risk of jeopardizing a democratic regime; and – It should be prohibited from imposing the death penalty under any circumstances.156

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these judges might judge. Most of the cases such special tribunals ruled on concerned political offences. According to the CHC the great majority of the political prisoners tried and sentenced to death by these tribunals had been victims of enforced disappearances (CHC, Guatemala: Memory of Silence, Guatemala, 1999, tome VI, Annex I, case No. 22). See supra 1.8.C. International Commission of Jurists, International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors – A Practitioner’s Guide, ICJ Practitioners’ Guide Series No. 1, Geneva, 2004; F. Andreu Guzmán, Fuero Militar y Derecho Internacional, Bogotá, 2003. See, inter alia, HRC, Concluding Observations on Chile, CCPR/C/79/Add.104, 30 March 1999, para. 9; Concluding Observations on Peru, CCPR/C/79/Add.67, 25 July 1996, para. 12; Concluding Observations on the Russian Federation, CCPR/C/79/Add.54, 26 July 1995, para. 25; Concluding Observations on Egypt, CCPR/C/79/Add.23, 9 August 1993, para. 9; Concluding Observations on Venezuela, CCPR/C/79/Add.13, 28 December 1992, para. 8; and Concluding Observations on Algeria, CCPR/C/79/ Add.1, 25 September 1992, para. 5. Report of the United Nations Working Group on Arbitrary Detention, E/CN.4/1999/63, 18 December 1998, para. 80.

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The European Court of Human Rights referred to the competence of military courts in cases not directly related to enforced disappearance. In these cases, it declared that military judges could not be considered independent and impartial due to the nature of the bodies they belonged to.157 On the issue, the 1992 Declaration establishes that: Any person alleged to have perpetrated an act of enforced disappearance in a particular State shall, when the facts disclosed by an official investigation so warrant, be brought before competent civil authorities of that State for the purpose of prosecution and trial unless he has been extradited to another State wishing to exercise jurisdiction in accordance with relevant international agreements in force. All States should take any lawful and appropriate action available to them to bring to justice all persons presumed responsible for an act of enforced disappearance, who are found to be within their jurisdiction or under their control (Art. 14).

At the regional level, the 1994 Interamerican Convention provided that: Persons alleged to be responsible for the acts constituting the offence of forced disappearance of persons may be tried only in the competent jurisdictions of ordinary law in each state, to the exclusion of all other special jurisdictions, particularly military jurisdictions. The acts constituting forced disappearance shall not be deemed to have been committed in the course of military duties. Privileges, immunities, or special dispensations shall not be admitted in such trials, without prejudice to the provisions set forth in the Vienna Convention on Diplomatic Relations (Art. IX).

This provision represents the highest standard set on the issue of military tribunals until today.158

157

158

See, inter alia, ECHR, Case Findlay v. United Kingdom, judgment of 25 February 1997, paras. 74–77; Case Incal v. Turkey, judgment of 9 June 1998, paras. 67–73; Case Cable and others v. United Kingdom, judgment of 18 February 1999; and Case Smith and Ford v. United Kingdom, judgment of 29 September 1999. On 9 April 2002 Mexico deposited a reservation to Article IX: “The Government of the United Mexican States, upon ratifying the Inter-American Convention on the Forced Disappearance of Persons adopted in Belem, Brazil on June 9, 1994 makes express reservation to Article IX, inasmuch as the Political Constitution recognizes military jurisdiction when a member of the armed forces commits an illicit act while on duty. Military jurisdiction does not constitute a special jurisdiction in the sense of the Convention given that according to Article 14 of the Mexican Constitution nobody may be deprived of his life, liberty, property, possessions, or rights except as a result of a trial before previously established courts in which due process is observed in


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The Interamerican Commission on Human Rights has stated that: The jurisprudence of the Interamerican system has long denounced the creation of special courts or tribunals that displace the jurisdiction belonging to the ordinary courts or judicial tribunals and that do not use the duly established procedures of the legal process. This has included in particular the use of ad hoc or special courts or military tribunals to prosecute civilians for security offences in times of emergency, which practice has been condemned by this Commission, the Interamerican Court and other international authorities. The basis of this criticism has related in large part to the lack of independence of such tribunals from the Executive and the absence of minimal due process and fair trial guarantees in their processes.159 Military courts should be used only to judge active members of the military for alleged in-service crimes in the strict sense of the term. Human rights violations must be investigated, judged, and punished pursuant to law, by regular criminal courts. Change of jurisdiction shall not be permitted in these cases, since it distorts judicial guarantees, on the false pretence of the effectiveness of military justice, with serious institutional consequences, which in fact cast doubts on the civilian courts and the effective rule of law.160

The Interamerican Court of Human Rights has established since its judgment on the Castillo Petruzzi case that the: Basic principle of the independence of the judiciary is that every person has the right to be heard by regular courts, following procedures previously established by law.161

In a recent judgment rendered on a case of enforced disappearance, the Court established that:

159

160

161

accordance with laws promulgated prior to the fact”. The exclusion of application of Article IX, which is basically the aim of the Mexican reservation, may be considered as incompatible with the object and purpose of the Convention. In the light of the experience of many Latin American States, the establishment of special military courts, irrespective of the rules which formally governed their proceedings, has resulted in an effective means to ensure impunity to those who are engaged in the practice of enforced disappearance. ICommHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116 Doc.5 rev.1 corr., 22 October 2002, para. 230. ICommHR, Case No. 11.566 Masacre de Corumbiara (Brazil), Report No. 32/04, 11 March 2004, para. 265. IACHR, Case Castillo Petruzzi and others v. Peru, judgment of 30 May 1999, Ser. C No. 52, para. 128; Case Cantoral Benavides v. Peru, judgment of 18 August 2000, Ser. C No. 69, para. 112.

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[w]hen the military courts assume jurisdiction over a matter that should be heard by the ordinary courts, the right to the natural judge is violated as is, a fortiori, due process; this, in turn, is intimately linked to the right to access to justice itself. As the Court has previously established, the judge in charge of hearing a case must be competent, independent and impartial.162

In another judgement concerning a case of collective disappearance, the Court pointed out that: Con respecto a la jurisdicción penal militar, la Corte ya ha establecido que en un Estado democrático de derecho dicha jurisdicción ha de tener un alcance restrictivo y excepcional y estar encaminada a la protección de intereses jurídicos especiales, vinculados con las funciones que la ley asigna a las fuerzas militares. Por ello, sólo se debe juzgar a militares por la comisión de delitos o faltas que por su propia naturaleza atentan contra bienes jurídicos propios del orden militar, independientemente de que para la época de los hechos la legislación colombiana facultaba a los órganos de dicha jurisdicción a investigar hechos como los del presente caso.163

The 1998 Draft Convention substantially reproduced the Interamerican text: The alleged perpetrators of and other participants in the offence of forced disappearance or the other acts referred to in Article 2 of this Convention shall be tried only in the courts of general jurisdiction of each State, to the exclusion of all courts of special jurisdiction, and particularly military courts (Art. 10.1).

162 163

IACHR, Case 19 Comerciantes, supra note 62, para. 167. IACHR, Case Masacre de Pueblo Bello v. Colombia, judgment of 31 January 2006, para. 189, supra 2.3.U: “As regards the military criminal jurisdiction, the Court has already established that in a democratic State respecting the rule of law this jurisdiction shall have a restrictive and exceptional application and shall concern the protection of special judicial interests, linked with the functions that the law attributes to the army. For this reason, military personnel shall be judged only for crimes or offences that are, by their very nature, against legally protected interests that belong to the military order, irrespective of whether at the time when the facts took place Colombian law allowed bodies of the mentioned jurisdiction to investigate facts like the ones of the present case” (unofficial translation by the authors). See also, IACHR, Case Masacre de Mapiripán v. Colombia, judgment of 15 September 2005, para. 202, supra 2.3.R; Case La Cantuta, supra note 119, para. 142.


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In his 2002 report Mr. Nowak expressed the opinion that perpetrators of disappearances should be tried only in courts of general jurisdiction and under no circumstances by military courts.164 In the 2005 report the United Nations Working Group on Enforced or Involuntary Disappearances highlighted, as a preventive measure against the occurrence of enforced disappearances, the guarantee that those accused of having committed acts of enforced disappearances be tried only by competent civilian courts.165 In previous reports the Working Group had pointed out that: Military tribunals should only try military-related crimes committed by members of the security forces, and that serious violations of human rights such as forced disappearances should be excluded expressly from this category of crimes.166

The Principles to Combat Impunity establish that: The jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel, to the exclusion of human rights violations, which shall come under jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international law, of an international or internationalized criminal court (Principle 29).

In his 2005 report Mr. Pourgourides, examining “factors favouring impunity” in cases of enforced disappearance, pointed out that: It is inappropriate that in some countries, military tribunals that may be biased in favour of members of the military faced with complaints from civilian victims and whose proceedings are often closed to public scrutiny are competent to hear cases against suspected perpetrators belonging to the security forces.167

Accordingly, Resolution 1463 (2005) of the Parliamentary Assembly of the Council of Europe, points out that the future instrument on enforced disappearances should include the following provision: Perpetrators of enforced disappearances to be tried only in courts of general jurisdiction, and not in military courts.168

164 165

166 167 168

Report by Mr. Nowak, supra note 2, para. 82. E/CN.4/2006/56, supra note 88, para. 599; and E/CN.4/2005/65, supra note 42, para. 375. UNGWEID, Annual Report for 1992, E/CN.4/1993/25, 7 January 1993, para. 46. Report by Mr. Pourgourides, supra note 10, para. 58. Resolution 1463 (2005), supra note 38, para. 10.3.6. Para. 12.4 encourages member States to “lay down a rule following which perpetrators of enforced disappearances shall only be tried in courts of general jurisdiction and not in military courts”.

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However, notwithstanding the numerous precedents mentioned, the negotiations to draft the 2007 Convention have shown that no consensus on the topic could be found. Several States strongly opposed the introduction of any prohibition for military tribunals or special courts. The outcome of these debates reads as follows: Any person against whom proceedings are brought in connection with an offence of enforced disappearance shall be guaranteed fair treatment at all stages of the proceedings. Any person tried with an offence of enforced disappearance shall benefit from a fair trial before a competent, independent and impartial court or tribunal established by law (Art. 11.3).

Nobody denies that also the accused of the crime of enforced disappearance shall be granted fair treatment at all stages of the proceedings, like any other person involved in a criminal procedure. However, a specific provision of the 2007 Convention was originally supposed to address a very different question, that is if proceedings for enforced disappearances were admissible before military or special courts. The provision was intended to protect the victims and not the accused. The present wording of Article 11.3 is somewhat evasive, as any explicit reference to military or special jurisdictions has been deleted.169 Nonetheless, the condition that a “competent, independent and impartial court or tribunal established by law” shall be in charge of the relevant trials seems to implicitly exclude the possibility of making use of all military courts which cannot qualify as such. Furthermore, the provision can apply also to ordinary courts which, for some special reasons, may be incapable or unwilling to ensure fair trials.

4.8 Amnesties, Pardons and Similar Measures for Perpetrators of Enforced Disappearances In order to prevent and suppress the phenomenon of enforced disappearances a crucial issue is the avoidance of impunity. Worldwide, amnesties, pardons and similar measures, however they are named, have often followed periods

169

In a general statement released at the moment of adoption of the 2007 Convention the Italian delegation declared that it would have preferred a specific provision to prevent trials before special courts for those accused of enforced disappearance (E/ CN.4/2006/57, supra note 49, Annex II).


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of systematic human rights violations.170 The rationale behind the use of such measures has allegedly been the achievement of a social reconciliation within the shortest possible time, especially in post conflict contexts. The intention was to avoid cases of “justice of the winners”. More generally, the need to leave recent tragedies behind has been perceived as a priority. The granting of impunity to those responsible for human rights violations has created profound dissatisfaction, not only among relatives of the victims, but also, in the long term, in civil society in general.171 In some instances, this situation has culminated, after years of struggle, in the declaration of the unconstitutionality and incompatibility with international human rights law of amnesty provisions in cases of gross human rights violations, both at the domestic172 and 170

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172

Reference to amnesty laws and their far-reaching effects has been made, inter alia, by the HRC, Case Menanteau Aceituno and Carrasco Vásquez v. Chile, Communication No. 746/1997, 4 August 1999, supra 2.2.K. See also W.W. Burke-White, “Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation”, in Harvard International Law Journal, 2001, pp. 467–533; J. Gavron, “Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court”, in International and Comparative Law Quarterly, 2005, pp. 91–117. Amnesty Laws granting impunity to those responsible for acts of enforced disappearance have been adopted, inter alia, in Argentina (Ley de Obediencia Debida 23521, 8 June 1987 and Ley del Punto Final 23492, 24 December 1986), Chile (Law Decree 2191, 19 April 1978), Peru (Ley de Amnistía No. 26479, 14 June 1995, and No. 26492, 28 June 1995), El Salvador (Ley de Reconciliación Nacional, 23 January 1992, Ley No. 147 and Ley de Amnistía General para la consolidación de la paz, 20 March 1993, Law Decree 486), Guatemala (Ley de Reconciliación Nacional, Decree 145–96, 18 December 1996, which, however, expressly excludes cases involving forced disappearances, torture or genocide) and, recently, Colombia (Ley de Justicia y Paz, Law 211, 21 July 2005, which has complemented Law 782 of 2002, Law 768 of 2003 and Law 128 of 2004). On the latter, see, inter alia, International Commission of Jurists, Memorial en derecho Amicus Curiae presentado ante la Corte Constitucional de Colombia sobre la Ley 975 de 2005, llamada Ley de Justicia y Paz, Geneva, August 2005; and ICommHR, Pronunciamiento de la Comisión Interamericana de Derechos Humanos sobre la aplicación y el alcance de la Ley de Justicia y Paz en la República de Colombia, OEA/Ser/L/V/II.125 Doc.15, 1 August 2006. In 2005 the Supreme Court of Argentina declared unconstitutional the two amnesty laws adopted in 1986 and 1987 (Corte Suprema, Buenos Aires, S.1767.XXXVIII, Simón, Julio Héctor y otros s/ privación ilegítima de la libertad, etc., 14 June 2005). The Supreme Court of Chile on 17 November 2004 declared the non applicability of the amnesty law in cases of enforced disappearances (Corte Suprema de Chile, Juan Contreras Sepúlveda y otros (crimen) casación fondo y forma, 517/2004, Resolución 22267). The Constitutional Court of Colombia on 18 May 2006 declared the partial unconstitutionality of the amnesty law adopted in 2005 (Judgment C-370).

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international level.173 Indeed amnesties generally are incompatible with the duty of States to investigate serious human rights violations such as acts of enforced disappearances, to guarantee freedom from such acts within their jurisdiction and to ensure that they do not occur in the future. Furthermore, the fact that those responsible for the most serious human rights violations escape any sanction may determine an ongoing social tension, rather than facilitating reconciliation. The prohibition to apply amnesties or similar measures to people found responsible for grave violations of human rights – such as extra-judiciary executions, disappearances and torture – has been reaffirmed by several international instruments as well as by the practice of the United Nations and international ad hoc tribunals.174 Also the Human Rights Committee has reiterated several times that amnesty laws or similar measures that hinder the judgment and sanctioning of people responsible for serious crimes against human rights are not compatible with States’ obligations under the International Covenant on Civil and Political Rights.175 Under the 1992 Declaration

173

174

175

See, inter alia, IACHR, Case Barrios Altos (Chumbipuma Aguirre and others) v. Peru, judgment of 14 March 2001, Ser. C No. 75 (Merits), and 3 September 2001, Ser. C No. 83 (Interpretation); and ICommHR, inter alia, Case 11.481 (El Salvador), 13 April 2000. See, inter alia, Seventh Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, S/1999/836, 30 July 1999, para. 7; Report of the Secretary General prepared pursuant to Resolutions 1160(1998), 1199(1998) and 1203(1998) of the Security Council, S/1999/99, 29 January 1999, para. 32; and Report of the High Commissioner for Human Rights pursuant to Commission on Human Rights Resolution 2000/24 – Situation of Human Rights in Sierra Leone, E/CN.4/2001/35, 1 February 2001, para. 6. For relevant judgments delivered by international ad hoc tribunals, see ICTY, Case Prosecutor v. Furundzija, judgment of 10 December 1998, No. IT–95–17/1–T 10, para. 155; and Appeal Chamber of the Special Tribunal for Sierra Leone, Case Prosecutor v. Moinina Fofaza, judgment on preliminary objections of 25 May 2004, No. SCSL– 2004–14–AR72(e), para. 3. See, inter alia, HRC, Final Observations on Argentina, CPR/C/79/Add.46; A/50/40, 5 April 1995, para. 144; Final Observations on Argentina, CCPR/CO/70/ARG, 3 November 2000, para. 9, and CCPR/C/79/Add.104, para. 7; Final Observations on El Salvador, CCPR/CO/78/SLV, 22 August 2003, para. 6; CCPR/C/79/Add.34, para. 7; CCPR/C/79/Add.80, para. 13; Final Observations on Niger, CCPR/C/79/Add.17, 29 April 1993, para. 7; Final Observations on Peru, CCPR/CO/70/PER, 15 November 2000, para. 9. See also, HRC, Case Hugo Rodríguez v. Uruguay, Communication No. 322/1988, 9 August 1994, para. 12.4.


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1. Persons who have or are alleged to have committed offences referred to in Article 4, paragraph 1 above, shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction. 2. In the exercise of the right of pardon, the extreme seriousness of acts of enforced disappearance shall be taken into account (Art. 18).

In 2005 the United Nations Working Group on Enforced and Involuntary Disappearances adopted a General Comment on this provision: The Working Group on Enforced or Involuntary Disappearances has long been concerned with the effects of legal measures that result in amnesties and pardons, as well as mitigating measures or similar provisions that lead to impunity for gross violations of human rights, including disappearance. In its 1994 report [. . .] the Working Group specifically referred to the question of impunity, reminding States of their obligations not to make or enact laws that would in effect give immunity to perpetrators of disappearances. Subsequent reports have repeated this concern. The Working Group has followed closely the development of international human rights law regarding impunity. The Working Group bears in mind the contents of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, and recalls the provisions of Article 15 (2) of the International Covenant on Civil and Political Rights, the several decisions of the Human Rights Committee and of the Inter-American Commission and Court of Human Rights on the question of amnesties, and the reports and independent studies on the question of impunity prepared for the United Nations human rights system by independent experts. [. . .] General Comment 1. Article 18 of the Declaration on the Protection of all Persons from Enforced Disappearance (hereafter referred to as the ‘Declaration’) should be interpreted in conjunction with other articles of the Declaration. Therefore, States should refrain from making or enacting amnesty laws that would exempt the perpetrators of enforced disappearance from criminal proceedings and sanctions, and also prevent the proper application and implementation of other provisions of the Declaration. 2. An amnesty law should be considered as being contrary to the provisions of the Declaration even where endorsed by a referendum or similar consultation procedure, if, directly or indirectly, as a consequence of its application or implementation, it results in any or all of the following: (a) Ending the State’s obligations to investigate, prosecute and punish those responsible for disappearances, as provided for in Articles 4, 13, 14 and 16 of the Declaration; (b) Preventing, impeding or hindering the granting of adequate indemnification, rehabilitation, compensation and reparation as a result of the enforced disappearances, as provided for in Article 19 of the Declaration;

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3.

4.

5.

6.

(c) Concealing the names of the perpetrators of disappearance, thereby violating the right to truth and information, which can be inferred from Articles 4 (2) and 9 of the Declaration; (d) Exonerating the perpetrators of disappearance, treating them as if they had not committed such an act, and therefore have no obligation to indemnify the victim, in contravention of Articles 4 and 18 of the Declaration; (e) Dismissing criminal proceedings or closing investigations against alleged perpetrators of disappearances or imposing insignificant sanctions in order to give the perpetrators the benefit of the right not to be tried twice for the same crime which would in fact result in impunity, thereby violating Article 4 (1) of the Declaration; The following are examples of ‘similar measures’ which, even if not contained in an amnesty law, should be considered contrary to the Declaration: (a) Suspension or cessation of an investigation into disappearance on the basis of failure or inability to identify the possible perpetrators, in contravention of Article 13 (6) of the Declaration; (b) Making the victim’s right to truth, information, redress, reparation, rehabilitation, or compensation conditional on the withdrawal of charges or the granting of pardon to the alleged perpetrators of the disappearance; (c) Application of statutory limitations that are short or that commence even as the crime of disappearance is still ongoing, given the continuing nature of the crime, thereby breaching Articles 4 and 17 of the Declaration; (d) Application of any statutory limitation when the practice of disappearance constitutes a crime against humanity; (e) Putting perpetrators on trial as part of a scheme to acquit them or impose insignificant sanctions, which would in fact amount to impunity. Notwithstanding the above, Article 18 of the Declaration, when construed together with other provisions of the Declaration, allows limited and exceptional measures that directly lead to the prevention and termination of disappearances, as provided for in Article 3 of the Declaration, even if, prima facie, these measures could appear to have the effect of an amnesty law or similar measure that might result in impunity. Indeed, in States where systematic or massive violations of human rights have occurred as a result of internal armed conflict or political repression, legislative measures that could lead to finding the truth and reconciliation through pardon might be the only option to terminate or prevent disappearances. Although mitigating circumstances may, at first glance, appear to amount to measures that could lead to impunity, they are allowed under Article 4 (2) of the Declaration in two specific cases, i.e. when they lead


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to bringing the victims forward alive or to obtaining information that would contribute to establishing the fate of the disappeared person. 7. Also, the granting of pardon is expressly permitted under Article 18 (2) of the Declaration, as long as in its exercise the extreme seriousness of acts of disappearance is taken into account. 8. Therefore, in exceptional circumstances, when States consider it necessary to enact laws aimed to elucidate the truth and to terminate the practice of enforced disappearance, such laws may be compatible with the Declaration as long as such laws are within the following limits: (a) Criminal sanctions should not be completely eliminated, even if imprisonment is excluded by the law. Within the framework of pardon or of the application of mitigating measures, reasonable alternative criminal sanctions (i.e. payment of compensation, community work, etc.) should always be applicable to the persons who would otherwise have been subject to imprisonment for having perpetrated the crime of disappearance; (b) Pardon should only be granted after a genuine peace process or bona fide negotiations with the victims have been carried out, resulting in apologies and expressions of regret from the State or the perpetrators, and guarantees to prevent disappearances in the future; (c) Perpetrators of disappearances shall not benefit from such laws if the State has not fulfilled its obligations to investigate the relevant circumstances surrounding disappearances, identify and detain the perpetrators, and ensure the satisfaction of the right to justice, truth, information, redress, reparation, rehabilitation and compensation to the victims. Truth and reconciliation procedures should not prevent the parallel functioning of special prosecution and investigation procedures regarding disappearances; (d) In States that have gone through deep internal conflicts, criminal investigations and prosecutions may not be displaced by, but can run parallel to, carefully designed truth and reconciliation processes; (e) The law should clearly aim, with appropriate implementing mechanisms, to effectively achieve genuine and sustainable peace and to grant the victims guarantees of termination and non-repetition of the practice of disappearance.176

This is the most extensive comment released by an international body on the issue of amnesty laws and similar measures applied in cases of enforced disappearances. If exceptions have to be made to the principle that amnesty laws and similar measures are not admissible, it is preferable to have these exceptions listed in a very detailed and strict manner, to avoid the risk of abuses.

176

E/CN.4/2006/56, supra note 88, para. 49.

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The 1994 Interamerican Convention does not address the issue. However, this has not prevented the Interamerican Court from clarifying in a case decided in 2001 that: All amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.177

In a recent judgment on a case relating to Colombia, where an amnesty law was adopted in 2005,178 the Court reiterated its constant case law in the sense that: Ninguna ley ni disposición de derecho interno puede impedir a un Estado cumplir con la obligación de investigar y sancionar a los responsables de violaciones de derechos humanos. En particular, son inaceptables las disposiciones de amnistía, las reglas de prescripción y el establecimiento de excluyentes de responsabilidad que pretendan impedir la investigación y sanción de los responsables de las violaciones graves de los derechos humanos – como las del presente caso, ejecuciones y desapariciones. El Tribunal reitera que la obligación del Estado de investigar de manera adecuada y sancionar, en su caso, a los responsables, debe cumplirse diligentemente para evitar la impunidad y que este tipo de hechos vuelvan a repetirse.179

177

178

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IACHR, Case Barrios Altos (Chumbipuma Aguirre and others), supra note 173, judgment on the merits, para. 41. See supra note 171. On the Colombian amnesty law and its compatibility with international human rights law see also E/CN.4/2006/56/Add.1, supra note 90, paras. 66–77, 86, and, in particular, 116, where the UNGWEID concluded that: “The Justice and Peace Law should be amended in some of its provisions so as to ensure compliance of the Law with State obligations under the Declaration, including the international human rights norms regarding truth, justice and reparation”. Referring to the judgment of the Colombian Constitutional Court, supra note 172, that declares partially unconstitutional such amnesty law, the former President of the UNGWEID stated that “the Working Group had noted with satisfaction the decision of the Constitutional Court of Colombia to declare ineffective those provisions of the Justice and Peace Law that were contrary to international human rights law” (see United Nations, Human Rights Council, Summary Records of the 3rd Meeting, A/HRC/2/SR.3, 3 October 2006, paras. 4 and 92). IACHR, Case Masacre de Mapiripán, supra note 163, para. 146: “No domestic law or regulation – including amnesty laws and statutes of limitation – may impede the State’s compliance with the Court’s orders to investigate and punish perpetrators of human rights violations. In particular, amnesty laws, statutes of limitation and related provisions


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On the issue of amnesties, the 1998 Draft Convention provided that: 1. The perpetrators or suspected perpetrators of and other participants in the offence of forced disappearance or the acts referred to in Article 2 of this Convention shall not benefit from any amnesty measure or similar measures prior to their trial and, where applicable, conviction that would have the effect of exempting them from any criminal action or penalty. 2. The extreme seriousness of the offence of forced disappearance shall be taken into account in the granting of pardon (Art. 17).

In his report Mr. Nowak stressed that perpetrators of disappearance shall not benefit from any specific amnesty law or similar measure.180 In 2004 the United Nations Commission on Human Rights pointed out that impunity is simultaneously one of the underlying causes of enforced disappearances and one of the major obstacles to the elucidation of cases thereof.181 The 2004 Annual Report of the United Nations Working Group on Enforced or Involuntary Disappearances stressed that: Effective preventive measures are crucial. Among them, the Working Group highlights the following: (. . .) bringing to justice all persons accused of having committed acts of enforced disappearances (. . .) ensuring that they do not benefit from any special amnesty law or other similar measures likely to provide exemption from criminal proceedings or sanctions and providing redress and adequate compensation to victims and their families. (. . .) A further goal of public policy must be the eradication of the culture of impunity for the perpetrators of enforced or involuntary disappearances found to exist in many States. The Working Group therefore wishes to stress again the importance of ending impunity for the perpetrators of enforced or involuntary disappearances. This must be understood as a crucial step, not only in the pursuit of justice but also, in effective prevention.182

180 181

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that hinder the investigation and punishment of serious human rights violations – such as those of the present case, summary, extra-legal or arbitrary executions – are inadmissible, as said violations contravene non-derogable rights recognized in international human rights law” (unofficial translation by the authors). On the issue of amnesties, see also Case Almonacid Arellano and others, supra note 129, para. 114; Case La Cantuta, supra note 119, paras. 165–189, the attached concurring opinion of Judge S. García Ramírez, paras. 1–8, and the attached concurring opinion of Judge A.A. Cançado Trindade, paras. 23–35. Report by Mr. Nowak, supra note 2, para. 82. United Nations, Commission on Human Rights, Resolution 2004/40, 19 April 2004, Enforced or Involuntary Disappearances. At para. 5.c) the Commission on Human Rights urges States “to work to eradicate the culture of impunity for the perpetrators of enforced disappearances as a crucial step in effective prevention”. E/CN.4/2005/65, supra note 42, paras. 375 and 377.

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According to the Principles to Combat Impunity: Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty or other measures of clemency shall be kept within the following bounds: a) The perpetrators of serious crimes under international law may not benefit from such measures until such time as the State has met the obligations to which principle 19 (duties of States with regard to the administration of justice) refers or the perpetrators have been prosecuted before a court with jurisdiction – whether international, internationalized or national – outside the State in question; b) Amnesties and other measures of clemency shall be without effect with respect to the victim’s right to reparation, to which principles 31 through 34 refer and shall not prejudice the right to know [. . .] (Principle 24).

In his report Mr. Pourgourides mentioned “amnesty measures covering even such serious human rights violations as enforced disappearances” among the factors favouring impunity.183 Accordingly, Resolution 1463 (2005) by the Parliamentary Assembly of the Council of Europe stresses that the future convention on enforced disappearance should include the following safeguards against impunity: Exclusion of perpetrators of enforced disappearances from any amnesty or similar measures, and from any privileges, immunities or special exemptions from prosecution.184

Regrettably, all mentioned achievements at the domestic, regional and universal level, be they of legislative or judicial nature, have been left out of the text of the 2007 Convention. No consensus could be found on such a delicate issue. Some delegations, notwithstanding the generally recognized need for a development of international law in view of granting broader protection to human rights, pointed out that introducing a clause expressly prohibiting any amnesty in a legally binding instrument would have been an unprecedented step and too serious a limitation to the domestic jurisdiction of States, hindering processes of national reconciliation.185 Other States were ready to send a clear message to international society about this serious

183 184

185

Report by Mr. Pourgourides, supra note 10, para. 58. Resolution 1463 (2005), supra note 38, para. 10.3.5. Para. 12.3: “Improve measures against impunity, in particular by the exclusion of perpetrators of enforced disappearances from any amnesty or similar measures referred to above”. E/CN.4/2004/59, supra note 31, para. 76.


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undertaking in the fight against impunity.186 Given the circumstances, the Intersessional Working Group preferred not to mention the issue of amnesties, pardons or similar measures and limited itself to appealing to the good faith of governments. The fact remains that silence has been the result. With regard to the experiences and practice of past decades – as well as those of recent events – this appears to be a rather simplistic approach. At the moment of the adoption of the 2007 Convention Italy stated that it would have preferred a specific provision to prohibit pardons or amnesties in favour of those accused of enforced disappearances. Canada pointed out that paragraph 2(a) of Article 7, relating to the possibility for States Parties to establish mitigating circumstances, could not be interpreted in such a way that mitigating circumstances effectively amounted to an amnesty or granted impunity to those responsible for enforced disappearances, who should receive due punishment that took account of the seriousness of the crime.187 The United Nations Working Group on Enforced or Involuntary Disappearances expressed its deep concern about the fact that silence in a future convention against enforced disappearances seems to be leading to a dilution to the obligation expressed in the 1992 Declaration on strict limitations on amnesties (Art. 18).188

4.9 The Right to Obtain Information about Persons Deprived of their Liberty For the very nature of the phenomenon, prevention of enforced disappearance is strictly related to the issue of the right to obtain information about persons deprived of their liberty. This issue is also fundamental for the effective protection of the right to know the truth.189 The crucial matter is to

186

187 188 189

Some participants to the negotiations, in a spirit of compromise, “suggested the stipulation that amnesties, pardons and other measures could not have the effect of exempting the perpetrators or suspected perpetrators of enforced disappearances ‘from any criminal proceedings or sanction, before they are tried and, as the case may be, convicted’” (E/.CN.4/2004/59, supra note 31, para. 74). E/CN.4/2006/57, supra note 49, para. 112 and Annex II. E/CN.4/2005/65, supra note 42, para. 43. See infra 4.11.

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establish whether limitations to the right to obtain information on a person deprived of his liberty may be established and, in the case of an affirmative answer, under which conditions, towards whom and for how long. While the beneficiary is the person deprived of his liberty, the right to obtain information is granted to a number of persons who, because of their relationship with the former, are supposed to act in his favour, such as the relatives or a counsel. The obligation to provide information is not complied with if access to the latter is limited to public authorities who are prevented from disclosing it. In general, information may be requested not only about people who have disappeared but also about all people deprived of their liberty. In this sense, delicate issues related to the disclosure of information and protection of data in criminal investigations – for reasons of security and privacy – may arise. Under the 1992 Declaration: 1. Any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention. 2. Accurate information on the detention of such persons and their place or places of detention, including transfers, shall be made promptly available to their family members, their counsel or to any other persons having a legitimate interest in the information unless a wish to the contrary has been manifested by the person concerned. 3. An official up-to-date register of all persons deprived of their liberty shall be maintained in every place of detention. Additionally, each State shall take steps to maintain similar centralized registers. The information contained in these registers shall be made available to the persons mentioned in the preceding paragraph, to any judicial or other authority and to any other competent authority entitled to under the law of the State concerned or any international legal instrument to which a State concerned is a party, seeking to trace the whereabouts of a detained person (Art. 10).

Paragraph 2 of Article 10 allows for an exception to the obligation to provide information which can be denied if “a wish to the contrary has been manifested by the person concerned”. This may be questionable in cases of enforced disappearance where the situation of the victim excludes by itself any intention not to disclose his fate and whereabouts. This may also lead to the extortion by coercion of statements which are far from corresponding to the free will of a person deprived of liberty. However, the same exception is not repeated in paragraph 3 which grants to “family members, counsels or any other persons having legitimate interest” (that is a rather broad range


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of people) the right to obtain information from registers about those who have been deprived of their liberty. The purpose and the merits of Article 10, which excludes any exception under the pretext of any kind of “State’s interests”, are fully described in the General Comment adopted by the United Nations Working Group in 1996: Article 10 of the Declaration is one of the most practical and valuable tools for ensuring compliance by States with their general commitment not to practise, permit or tolerate enforced disappearances (Art. 2) and to take effective legislative, administrative and judicial measures to prevent and terminate such acts (Art. 3). [. . .] This provision combines three obligations which, if observed, would effectively prevent enforced disappearances: recognized place of detention, limits of administrative or pre-trial detention and judicial intervention. The first commitment is that the person “deprived of liberty be held in an officially recognized place of detention”. This provision requires that such places must be official – whether they be police, military or other premises – and in all cases clearly identifiable and recognized as such. Under no circumstances, including states of war or public emergency, can any State interests be invoked to justify or legitimize secret centres or places of detention which, by definition, would violate the Declaration, without exception. This first commitment is reinforced by the provisions contained in paragraphs 2 and 3 of Article 10. Paragraph 2 provides that information on the place of detention of such persons “shall be made promptly available to their family members, their counsel or to any other persons having a legitimate interest in the information unless a wish to the contrary has been manifested by the persons concerned”. It is therefore not enough for the detention to take place in an officially recognized place; information on it must be made available to the persons mentioned in that paragraph. Accordingly, both the lack of such information and any impediments to access to it must be considered violations of the Declaration. Paragraph 3 refers to the highly important commitment of maintaining upto-date registers of all persons deprived of liberty and of making the information contained in those registers available to the persons mentioned in paragraph 2 and to any other authority entitled to it under national or international law, including the Working Group on Enforced or Involuntary Disappearances. The Group has a mandate to clarify the fate and whereabouts of disappeared persons and to monitor States’ compliance with the Declaration. Emphasis is given to the principle that the information should not only exist, but must be available to a range of persons extending far beyond family members. The minimum requirement for such information is the up-to-date register in every centre or place of detention, which means that complying formally with this commitment by keeping some sort of record can never be sufficient; each register must be continuously updated so that the information that it contains covers all persons being held in the relevant centre or place of detention. Anything else would

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be a violation of the Declaration. [. . .] The second commitment is to ensure that any person deprived of liberty is “brought before a judicial authority”, which complements the preceding provision on the place of detention and availability of information. It is not enough for the place of detention to be an “officially recognized place of detention” or for accurate information to be available on the place where the individual is being held. The Declaration takes account of a more substantive aspect of detention in stipulating that administrative or pre-trial detention must be only temporary, as the person deprived of liberty must be “brought before a judicial authority”. This obligation is in addition to those considered above. The third commitment is to ensure that the person in question is brought before a judicial authority “promptly after detention”. [. . .] Consequently, any detention which is prolonged unreasonably or where the detainee is not charged so that he can be brought before a court is a violation of the Declaration. [. . .] The Declaration provides for no exceptions to observance of the commitments contained in Article 10. Consequently, not even the existence of a state of emergency can justify non-observance.190

On the same issue, the 1994 Interamerican Convention provides that: Every person deprived of liberty shall be held in an officially recognized place of detention and be brought before a competent judicial authority without delay, in accordance with applicable domestic law. The States Parties shall establish and maintain official up-to-date registries of their detainees and, in accordance with their domestic law, shall make them available to relatives, judges, attorneys, any other person having a legitimate interest, and other authorities (Art. XI).

Again, many people are listed among those who have the right to obtain information on the deprivation of liberty. In 1994 the Human Rights Committee, in the leading case El-Megreisi, expressed the view that “being subject to prolonged incommunicado detention in an unknown location constitutes torture and cruel and inhuman treatment”.191 This view can be understood in the sense that secret detention, t hat is detention in an unrecognized place of detention, is always illegal, while incommunicado detention, that is detention without information to people

190

191

UNGWEID, Annual Report for 1996, E/CN.4/1997/34, 13 December 1996, paras. 22–30 (emphasis is added). HRC, Case El-Megreisi v. Libyan Arab Jamahiriya, Communication No. 440/1990, 23 March 1994, para. 5.4, supra 2.2.D. See also HRC, General Comment No. 20 on Article 7, 10 March 1992, para. 11.


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who can act for the benefit of the victim, may be legal, provided that it is not “prolonged”. However, it is questionable how much time is covered by the word “prolonged”. The principle established in the El-Megreisi case has been constantly reproduced in the subsequent case law of the Committee. Article 22 of the 1998 Draft Convention provided that: 1. States Parties guarantee that any person deprived of liberty shall be held solely in an officially recognized and controlled place of detention and be brought before a judge or other competent judicial authority without delay, who will also be informed of the place where the person is being deprived of liberty. 2. Accurate information on the deprivation of liberty of any person and his or her whereabouts, including information on any transfer, the identity of those responsible for the deprivation of liberty, and the authority in whose hands the person has been placed, shall be made immediately available to the person’s counsel or to any other persons having a legitimate interest in the information. 3. In every place where persons deprived of liberty are held, States Parties shall maintain official up-to-date registers of such persons. Additionally, they shall maintain similar centralized registers. The information contained in these registers shall be made available to the persons and authorities mentioned in the preceding paragraph. 4. States Parties shall identify who is the responsible person in national law for the integrity and accuracy of the custody record. Without prejudice to the provisions of Articles 1, 2 and 3 of this Convention, States Parties shall make it a criminal offence for the responsible person, as defined in national law, to fail to register the deprivation of liberty of any person or to record information which is or should be known to be inaccurate in the custody record.

Article 22 was notable for the detailed information which has to be provided under para. 2 and for the requirement to identify the person responsible for keeping the custody record (para. 4). While relatives of the person deprived of liberty are not specifically mentioned in para. 2, they can easily be included among the “persons having a legitimate interest in the information”. In this case also no exceptions to the right to obtain information on the detained person are admitted. In his 2002 report Mr. Nowak considered that full protection against enforced disappearance could be provided only by: Absolute prohibition of any form of incommunicado detention; [. . .] The establishment and maintenance of an official and generally accessible up-to-date register of all detainees at every place of detention and of centralized registers of all places of detention; [. . .]

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The absolute prohibition of secret places of detention; The right of access to any place of detention by an independent State authority.192

It is worth noting that Mr. Nowak considerably enlarges the scope of prevention, as he not only refers to the prohibition of secret places of detention, but also calls for the absolute “prohibition of any form of incommunicado detention”. His position was echoed in the 2005 report by Mr. Pourgourides, who stressed that “any form of incommunicado detention and any secret places of detention must be absolutely prohibited”.193 Accordingly, Resolution 1463 (2005) of the Parliamentary Assembly of the Council of Europe, referring to a future instrument on enforced disappearance, indicated to member States that: The instrument should include the following preventive measures: Unqualified prohibition of any form of incommunicado detention and of any secret places of detention; [. . .] Establishment of an officially and generally accessible up-to-date register of all detainees, and of centralized registers of all places of detention.194

All mentioned instances do not refer to any limitation (e.g. national security, privacy, ongoing criminal investigation) to the right to obtain information about persons deprived of their liberty. Unfortunately, this does not seem to mirror contemporary reality,195 where severe restrictions to such right are being applied, with the worrying result of concretely putting a number of people outside the protection of the law and impairing their relatives’ right to know the truth. A notable instance of the difficulties and violations of fundamental human rights related to the denial of information for alleged “national security reasons” may be found in the 2006 judgment by the European Court of Human Rights on the Imakayeva case.196 In that case the European Court several times asked the Russian authorities for copies of documents related to the alleged disappearances. It also invited the government to submit a detailed outline of the proceedings. However, the Russian Federation

192 193 194 195

196

Report by Mr. Nowak, supra note 2, para. 83. Report by Mr. Pourgourides, supra note 10, para. 59. Resolution 1463 (2005), supra note 38, paras. 10.4.1 and 10.4.4. It is worth noting that also in the past, in several cases of enforced disappearances, information on the victim was denied to his relatives on grounds of “national security reasons”. ECHR, Case Imakayeva v. Russia, judgment of 9 November 2006, supra 2.4.M.


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rejected this request. It informed the Court that certain documents had been classified as “secret” in accordance with section 5.4 of the Federal State Secrets Act,197 because they contained data received as a result of undercover operative measures. If information has been denied to the European Court itself, one can easily imagine how much information has been concealed to the relatives of the victims. The question of restrictions to the right to obtain information on persons deprived of their liberty was harshly debated during the negotiation for the 2007 Convention. A number of provisions are basically related to the issue. Article 17 deals with the conditions under which a person can be lawfully deprived of liberty and with the official records that have to be maintained when a deprivation of liberty takes place. All these quite detailed conditions stem from the basic principle embodied in paragraph 1 that no form of secret detention is admissible.198 1. No one shall be held in secret detention. 2. Without prejudice to other international obligations of the State Party with regard to the deprivation of liberty, each State Party shall, in its legislation: (a) Establish the conditions under which orders of deprivation of liberty may be given; (b) Indicate those authorities authorized to order the deprivation of liberty; (c) Guarantee that any person deprived of liberty shall be held solely in officially recognized and supervised places of deprivation of liberty;

197

198

To be read in connection with the Suppression of Terrorism Act of 1998, which in Section 15 (“Informing the public about terrorist acts”) provides as follows: “2. Information that cannot be released to the public includes: (1) information disclosing the special methods, techniques and tactics of an antiterrorist operation; [. . .] (4) information on members of special units, officers of the operational centre managing an antiterrorist operation and persons assisting in carrying out such operation. The State Secrets Act (Law No. 5485–1 of 21 July 1993) lists in Section 5, part 4, the types of information which constitute state secrets in the area of intelligence, counterintelligence and undercover operative activities. They include, inter alia, data on the measures, sources, methods, plans and results of such activities; data on persons who corroborate on a confidential basis with the agencies carrying out such activities; data about the organisation and methods of maintaining security at State security premises and of the systems of secured communications”. Sadly enough, one delegation proposed that Article 17.1 “should either be deleted or be rewarded to read ‘no one shall be held in detention in a secret location’” (E/ CN.4/2006/57, supra note 49, para. 129). The proposal might have been interpreted in the sense that while detention in a secret location is formally prohibited, secret detention in a non secret location is allowed.

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(d) Guarantee that any person deprived of liberty shall be authorized to communicate with and be visited by his or her family, counsel or any other person of his or her choice, subject only to the conditions established by law, or, if he or she is a foreigner, to communicate with his or her consular authorities, in accordance with applicable international law; (e) Guarantee access by the competent and legally authorized authorities and institutions to the places where persons are deprived of liberty, if necessary with the prior authorisation of a judicial authority; (f ) Guarantee that any person deprived of liberty and, in the case of a suspected enforced disappearance, the person deprived of liberty not being able to exercise this right, that any person with a legitimate interest, such as relatives of the person deprived of liberty, their representative or their counsel, in all circumstances, shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of the deprivation of liberty and order the release if that deprivation of liberty is not lawful. 3. Each State Party shall assure the compilation and maintenance of one or more up-to-date official registers and/or records of persons deprived of liberty, which shall be made promptly available, upon request, to any judicial or other competent authority or institution authorized for that purpose by the law of the State Party concerned or any relevant international legal instrument to which the State concerned is a party. The information contained therein shall include, as a minimum: (a) The identity of the person deprived of liberty; (b) The date, time and location where the person was deprived of liberty and the identity of the authority who deprived the person of liberty; (c) The authority having decided the deprivation of liberty and the reasons for the deprivation of liberty; (d) The authority controlling the deprivation of liberty; (e) The place of deprivation of liberty, the date and time of admission to the place of deprivation of liberty and the authority responsible for the place of deprivation of liberty; (f ) Elements regarding the physical integrity of the person deprived of liberty; (g) In the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the human remains; (h) The date and time of release or transfer to another place of detention, the destination and the authority responsible for the transfer.199

Article 18 is devoted to the rights of persons who can act for the benefit of the person deprived of liberty:

199

Referring to Article 17.2.(f ) Angola and China stated that “according to their interpretation it was for national law to define who [people having a legitimate interest] were” (E/CN.4/2006/57, supra note 49, para. 132).


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1. Without prejudice to Articles 19 and 20, each State Party shall guarantee to any person with a legitimate interest in this information, such as relatives of the person deprived of liberty, their representative or their counsel, access to at least the following information: (a) The authority having decided the deprivation of liberty; (b) The date, time and location where the person was deprived of liberty and admitted to the place of deprivation of liberty; (c) The authority controlling the deprivation of liberty; (d) The whereabouts of the person deprived of liberty, including, in the event of a transfer to another place of deprivation of liberty, the destination and the authority responsible for the transfer; (e) The date, time and place of release; (f ) Elements regarding the physical integrity of the person deprived of liberty; (g) In the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the human remains. 2. Appropriate measures shall be taken, where necessary, to protect the persons referred to in paragraph 1, as well as persons participating in the investigation, from any ill-treatment, intimidation or sanction as a result of the search for information concerning a person deprived of liberty.200

Also this provision is notable for the detailed specification of the kind of information that a broad range of people is entitled to receive, including data on the state of health of the person deprived of liberty and, in the case of death, on the destination of the human remains. Mention is also made to the obligation, where necessary, to ensure the protection of persons who can be targeted for their seeking information on the person deprived of liberty.201 When the text of the 2007 Convention was adopted, the United States of America expressed that it found that Article 17 concerning access to places of detention, despite significant improvement, retained the possibility of conflict with constitutional and legal provisions in the laws of some States Parties. Accordingly, it would interpret the term “any persons with legitimate 200

201

Related to information, although under a different aspect, is also Article 19: “1. Personal information, including medical and genetic data, which are collected and/or transmitted within the framework of the search for a disappeared person shall not be used or made available for purposes other than the search for the disappeared person. This is without prejudice to the use of such information in criminal proceedings relating to an offence of enforced disappearance or the exercise of the right to obtain reparation. 2. The collection, processing, use and storage of personal information, including medical and genetic data, shall not infringe or have the effect of infringing the human rights, fundamental freedoms or human dignity of an individual”. The wording of Articles 17 and 18 is the result of the efforts made by the International Committee of the Red Cross, supported by some States. See infra 4.10.

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interest” in Articles 17, 18 and 20 in accordance with the domestic law of the State.202 Moreover: Article 18 on access to information similarly retains the possibility of conflict with constitutional and other legal provisions and sets unreasonable standards guaranteeing information.203

While the United States is free to become or not to become a Party to the 2007 Convention, to subject an obligation arising from an international treaty to domestic legislation is contrary to Article 27204 of the 1969 Vienna Convention on the Law of Treaties. However, the obligations set forth in Articles 17 and 18 are limited by Article 20, which was the result of protracted discussion among the delegations participating in the Intersessional Open-ended Working Group. The final result is a sort of compromise which is reflected in very complex wording. In fact the restrictions introduced by Article 20 to Articles 17 and 18 are in their turn restricted by several conditions. 1. Only when a person is under the protection of the law and the deprivation of liberty is subject to judicial control, can the right to information referred to in Article 18 be restricted and only on an exceptional basis, where strictly necessary and provided for by law, and if the transmission of the information would undermine the privacy or safety of the person, hinder a criminal investigation, or for other equivalent reasons in accordance with the law, and in conformity with applicable international law and with the objectives of the present Convention. In no case shall there be restrictions to the right to information referred to in Article 18 that could constitute conduct defined in Article 2 or be in violation of Article 17.1. 2. Without prejudice to consideration of the lawfulness of the deprivation of a person’s liberty, States Parties shall guarantee to the persons referred to in Article 18.1 the right to a prompt and effective judicial remedy as a means of obtaining without delay information referred to in Article 18.1. This right to a remedy may not be suspended or restricted in any circumstances (Art. 20).

202 203 204

E/CN.4/2006/57, supra note 49, Annex II; A/HRC/1/G/1, supra note 7. A/HRC/1/G/1, supra note 7. Article 27 (Internal law and observance of treaties): “A Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46”.


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Paragraph 2 grants a judicial remedy in cases where information on a detained person is restricted or denied. Nevertheless, this does not seem enough to deal with the dangers created by paragraph 1.205 The latter was introduced in the 2007 Convention to meet the concern of a number of States which were not able to accept an unrestricted access to information on persons deprived of their liberty and which believed that some exceptions should be admissible for certain reasons, such as the protection of the privacy of the person deprived of liberty or national security or others.206 The wording “national security” is avoided in the text of Article 20.1. As past experiences demonstrate, most enforced disappearances have taken place under the pretext of “national security” or similar reasons. Indeed the most important element of national security is that people shall not disappear and that every person can be deprived of liberty only under the full compliance of the relevant domestic and international rules. The dangers related to the possibility of denying information on people deprived of their liberty for reasons related to “national security” is clearly explained by Rapporteur Dick Marty in his 2006 report to the Council of Europe on the phenomenon of extraordinary renditions and secret detentions: [. . .] It is obvious that if the American authorities did not constantly raise the objection of secrecy for national security reasons, it would be far easier to establish the truth. We find that today, this secrecy is no longer justified. In a free and democratic society, it is far more important to establish the truth on numerous allegations of serious human rights violations, many of which are proven to a large extent.207

205

206

207

During the negotiation one delegation emphasized that Article 20.1 “ran counter to the right to the truth which the instrument was supposed to protect” (E/CN.4/2006/57, supra note 49, para. 23). A proposal was made that access to information “could be restricted for reasons of respect for the detainee’s private life or the needs of law enforcement and national security, or in the light of any other legally justified consideration” (E/CN.4/2004/59, supra note 31, para. 106). However, many delegations “noted that the selected wording allowed the authorities considerable leeway in withholding information on the disappeared person, and thus failed to minimise the risks of disappearance. It was pointed out that the requirements of the investigation were often cited by the authorities responsible for enforced disappearance when withholding information on persons deprived of liberty” (ibid., para. 124). Council of Europe, Parliamentary Assembly, Alleged Secret Detentions and Unlawful Inter-State Transfers Involving Council of Europe Member States, Draft Report – Part II (Explanatory Memorandum), Rapporteur Mr. Dick Marty, 7 June 2006, para. 236. See supra 1.6.C.

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However, “national security” could be implied in the expression “other equivalent reasons in accordance with the law”, which has a too generic meaning. It is regrettable that such an expression has been included in the text of the 2007 Convention for the sake of reaching a compromise. This may suggest that at any time domestic legal provisions so dispose, information on the place of detention of a person might be denied to relatives of the person. This interpretation, apart from undermining the concrete prevention of disappearances, should be considered contrary to the objectives of the treaty and, as such, disregarded. As regards the question of privacy, it is true that in some rare occasions a person legally deprived of liberty could voluntarily prefer not to disclose his condition (e.g. so-called repentant). However, it is also true that these are very exceptional cases which can be dealt with using specific regulations. In the context of the combating a very serious crime, such as enforced disappearance, it is important not to suggest to the States that do not respect the rule of law any easy excuses for engaging in such a serious human rights violation. As pointed out by some delegations, Protecting certain rights which were at risk in the event of an enforced disappearance, such as the right to life, security and physical integrity, was more important than protecting privacy and (. . .) efforts to protect the latter should not result in diminished protection against enforced disappearance.208

This sentence should never be forgotten, especially by those States that are too much concerned about the issue of privacy. When victims of enforced disappearance are abducted, they try to cry out their names to be heard by others and be remembered.209 They are by no means concerned about “privacy”. Some delegations taking part in the negotiation declared that Article 20 should be removed, as it is inimical to the very purposes of the instrument itself. Others emphasized that States Parties should in no case withhold information on the place of detention. Several delegations called for emphasis to be placed on the exceptional nature of situations in which States could refuse to comply with requests for information.210 The delegation of

208 209 210

E/CN.4/2004/59, supra note 31, para. 125. See, inter alia, HRC, Case Quinteros, supra note 138. E/CN.4/2006/57, supra note 49, para. 17.


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Argentina said that the article could on no account be interpreted, even in exceptional cases, as meaning that it was permissible to deny or conceal information relating to the crime of enforced disappearance. In particular, it was not permissible to deny or conceal information on the fate of a person deprived of liberty, whether that person was alive or not, the person’s state of physical and mental health or the location at which the person was held.211 The Italian delegation pointed out that, although it would have preferred specific provisions to oblige the State always to grant all the information listed in Article 18, the several conditions set forth in Article 20 led to the practical result that the denial of information can never facilitate any practice of enforced disappearance or secret detention.212 When the text of the 2007 Convention was adopted by the Third Committee of the General Assembly of the United Nations, the representative of the United Kingdom stated that: The United Kingdom understands Article 20 (which permits restrictions to the provisions of information in Article 18), to apply to all situations where a person is not “outside the protection of the law” – in other words, where the person is within the State’s domestic legal rules governing deprivation of liberty or detention, consistent with applicable international law.213

This statement seems to confirm all the traps hidden in the expression “outside the protection of the law” if it is considered as a constitutive element of the definition of enforced disappearance.214 If the domestic legislation of a State allows some forms of deprivation of liberty which are very close to secret detention (for instance, in the case of people suspected of being terrorists or presumed to know something about terrorists), a person deprived of liberty on the basis of such legislation could never be considered as placed within the protection of the law. However, the United Kingdom admits that deprivation of liberty must be “consistent with applicable international law”. The latter does not permit any kind of secret detention, irrespective of the regime established by the domestic legislation of any country, United Kingdom included. Finally, as regards the criminal aspects of the denial of information, Article 22 of the 2007 Convention provides that:

211 212 213 214

Ibid., para. 136. Ibid., Annex II. GA/SHC/3872, supra note 7. See supra 4.2.

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Without prejudice to Article 6, each State Party shall take the necessary measures to prevent and impose sanctions for the following conduct: a) Delaying or obstructing the remedies referred to in Article 17.2 f ), and Article 20.2. b) Failure to record the deprivation of liberty of any person, or the recording of any information which the official responsible for the official register and/or records knew or should have known to be inaccurate; c) Refusal to provide information on the deprivation of liberty of a person, or the provision of inaccurate information, even though the legal requirements for providing such information have been met (Art. 22).215

4.10

The Victims of the Offence

The concept of who might be considered as the victim of an act of enforced disappearance has gone through a significant evolution, especially as a consequence of the case law of international human rights tribunals.216 The fact that a number of people besides the material victim are involved in a case of enforced disappearance is recalled by the wording of the 1977 report of the Interamerican Commission on Human Rights to the General Assembly of the OAS: This procedure is cruel and inhuman. As experience shows, a “disappearance” not only constitutes an arbitrary deprivation of freedom but also a serious danger to the personal integrity and safety and to even the very life of the victim. It leaves the victim totally defenceless, violating the rights to a fair trial, to protection against arbitrary arrest and to due process. It is, moreover, a true form of torture for the victim’s family and friends, because of the uncertainty they experience as to the fate of the victim and because they feel powerless to provide legal, moral and material assistance.217

In 1983 the Human Rights Committee218 declared that also the relatives of a material victim of enforced disappearance have an autonomous standing and

215

216 217

218

The United States declared that “Article 22 on additional criminalization, among other concerns, should contain an express intentionality requirement and the United States will interpret it as containing such an intent requirement” (A/HRC/1/G/1, supra note 7). Report by Mr. Nowak, supra note 2, paras. 77–78. Annual Report of the ICommHR to the General Assembly of the OAS, OEA/Ser. L/V/II.43, Doc. 21 corr. 1, 20 April 1978, Conclusions, Part II. HRC, Case Quinteros, supra note 138.


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deserve to be considered as independent victims of a violation of their right not to be subject to inhuman and degrading treatment. According to the Committee, the psychological situation relatives of the disappeared are subjected to constitutes per se a form of inhuman and degrading treatment. The 1992 Declaration provides that: The victims of acts of enforced disappearance and their family shall obtain redress and shall have the right to adequate compensation, including the means for a complete rehabilitation as possible. In the event of the death of the victim as a result of an act of enforced disappearance, their dependants shall also be entitled to compensation (Art. 19).

This implies a distinction between those who are considered to be the material victims, which is to say the people who have disappeared, and their relatives, who also are victims of the crime, although to a different extent. As such, the relatives should be entitled to compensation in any case and not only in the event of the death of the victim.219 The 1994 Interamerican Convention did not address the issue of the identity and nature of the victims of enforced disappearances. Both the Interamerican and European Courts of Human Rights rendered judgments which might be considered as a turning point in the determination of the concept of “victims” in cases of enforced disappearance. In 1998220 the Interamerican Court recognized the relatives of the disappeared person as autonomous victims of a violation of their right not to be subjected to inhuman and degrading treatment. In the same year, the assumption was shared by the European Court,221 even though its subsequent case law has not always been coherent on the issue. Indeed, according to the jurisprudence of the Interamerican Court:

219

220 221

In a General Comment released by the UNGWEID on Article 19 there is this clarification: “[. . .] In other words, the right to compensation in relation to an act of enforced disappearance shall not be made conditional on the death of the victim. ‘In the event of the death of the victim as a result of an act of enforced disappearance’, the dependants are, however, entitled to additional compensation by virtue of the last sentence of Article 19” (E/CN.4/1998/43, Annual Report for 1997, 12 January 1998, para. 74). IACHR, Case Blake, supra note 141. ECHR, Case Kurt v. Turkey, judgment of 25 May 1998, supra 2.4.A. The ECHR clearly stated that the Kurt case did not establish any general principle that a family member of a disappeared person was thereby a victim of treatment contrary to Article 3 (prohibition of torture, inhuman and degrading treatment) of the European Convention on Human Rights.

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[. . .] la Corte considera que no se necesita prueba para demostrar las graves afectaciones a la integridad psíquica y emocional de los familiares de las víctimas.222 [. . .] El Tribunal considera como familiares inmediatos a aquellas personas debidamente identificadas que sean descendientes o ascendientes directos de la presunta víctima, a saber, madres, padres, hijas e hijos, así como hermanas o hermanos, cónyuges o compañeros permanentes, o aquellos determinados por la Corte con motivo de las particularidades del caso y la existencia de algún vínculo especial entre el familiar y la víctima o los hechos del caso.223

The Court adopted a broad interpretation of the concept of direct relatives who are to be considered as victims of inhuman and degrading treatment in cases of enforced disappearance. While the Court provides a list of relatives who may be affected by the crime, the list is not intended to be exhaustive and other people could be added, according to the peculiarities of the case. The Interamerican Court also found that the suffering of the relatives of victims does not need to be proved by the applicants and shall be presumed. On the contrary, the European Court imposes the burden of the proof of the suffering on the relatives and does not allow for any presumption in this sense. Besides, the Court has varied widely as to the range of people that it considers as relatives of the victim and therefore suffering direct harm from the disappearance, by introducing arguable distinctions about the intensity of the suffering that may be felt, for instance, by a mother or by a brother.224 The case law of the Human Rights Chamber for Bosnia and Herzegovina basically followed Interamerican practice on the matter.225 The 1998 Draft Convention established that: 222

223

224

225

See, inter alia, IACHR, Case Masacre de Mapiripán, supra note 163, para. 146; and Case Masacres de Ituango v. Colombia, judgment of 1 July 2006, Ser. C No. 148, para. 262. “In cases such as the Mapiripán massacre, the Court is of the view that there is no need to prove the serious damage suffered as regards the psychological and emotional integrity of the relatives of the victims” (unofficial translation by the authors). IACHR, Case Masacres de Ituango, supra note 222, para. 264: “This Tribunal considers as direct relatives those persons whose identity has been duly certified, who are direct descendents or ascendants of the alleged victim, namely: mothers, fathers, sons and daughters, as well as sisters and brothers, spouses or permanent partners, or those determined by the Court because of the peculiarities of the case and the existence of a special tie between the relative and the victim of the case” (unofficial translation by the authors). See, inter alia, ECHR, Case Çakici v. Turkey, judgment of 8 July 1999, para. 99, supra 2.4.B. HRCBH, Case Palić v. Serb Republic, 11 January 2001 (Case No. CH/99/3196), supra 2.5.C.


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For the purposes of this Convention, the term “victim of the offence of forced disappearance” means the disappeared person, his or her relatives, any dependant who has a direct relationship with her or him, and anyone who has suffered harm through intervening in order to prevent the forced disappearance or to shed light on the whereabouts of the disappeared person (Art. 24.3).

In the report presented in 2005 by Mr. Pourgourides to the Parliamentary Assembly of the Council of Europe it is noted that: Often, the disappeared persons are killed immediately, but their spouses, children or parents continue to live for many years in a situation of extreme anguish and stress, torn between hope and despair. They must therefore also be considered as victims of the crime of enforced disappearance. [. . .] The disappeared person’s close relatives are victims of the crime of enforced disappearance and should be recognized as such in terms of procedural and compensation rights. [. . .] Another lacuna of the existing legal framework is the incomplete recognition of family members of the disappeared as victims, [. . .]. The case law of different human rights bodies is still not unanimous in recognizing the family members as victims of torture or inhuman or degrading treatment (Art. 3 European Convention on Human Rights), or a violation of the right to respect for private and family life (Art. 8 European Convention on Human Rights).226

The observations of the Rapporteur were mirrored in Resolution 1463 of the Parliamentary Assembly: Family members of the disappeared persons should be recognized as independent victims of the enforced disappearance [. . .].227

Under the Principles on Reparation, victims are: Persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization (principle 8).

The 2007 Convention envisaged a broad notion of “victim”:

226 227

Report by Mr. Pourgourides, supra note 10, paras. 3, 21 and 49. Resolution 1463 (2005), supra note 38, para. 10.2.

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For the purposes of this Convention, “victim” means the disappeared person and any individual who has suffered harm as direct result of an enforced disappearance (Art. 24.1).

This wording seems to reproduce principles already well established under Interamerican case law and by other international bodies.228 The definition of “victim” is sufficiently broad to include not only the relatives of the material victim, but also all who have suffered harm in intervening to assist victims and their relatives, such as human rights defenders and lawyers. At the moment of the adoption of the draft 2007 Convention, the United States stated that “Article 24 employs an overbroad definition of victim”229 without however specifying how it should be restricted. Leaving aside the right to know the truth,230 the right to reparation of the victims,231 and the provisions on mortal remains,232 the 2007 Convention provides for a whole set of rights that victims of enforced disappearance are entitled to: 4. Each State Party shall ensure in its legal system that the victim of an enforced disappearance obtains reparation and has an enforceable right to prompt, fair and adequate compensation. [. . .] 6. Without prejudice to the obligation to continue the investigation until the fate of the disappeared person has been clarified, each State Party shall take the appropriate steps with regard to the legal situation of the disappeared persons whose fate has not been clarified and that of their relatives, in fields such as social welfare, financial matters, family law and property rights. 7. Each State Party shall guarantee the right to form and participate freely in organizations and associations concerned with contributing to the establishment of the circumstances of enforced disappearances and of the fate of the disappeared persons, and with assistance to victims of enforced disappearance (Art. 24).

One aspect of this represents a major progress in the issue of enforced disappearances: the obligation to guarantee the right to form and participate 228

229 230 231 232

A reference for the 2007 Convention is the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly by Resolution 40/34 of 29 November 1985, principles 4, 5 and 6. This approach should be taken into account, in the future, by those international tribunals (e.g. the European Court of Human Rights) that still refrain from doing so. A/HRC/1/G/1, supra note 7. See infra 4.11. Paragraph 5 of Article 24. For the relevant analysis see infra 4.13. See infra 4.12.


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freely in organizations and associations concerned with contributing to the establishment of the circumstances of enforced disappearances and of the fate of disappeared persons.233 This leads to the progressive development of international human rights law to address the several threats, attacks and serious human rights violations suffered by relatives of the victims who organize themselves in order to establish the fate and whereabouts of their loved ones worldwide.234

4.11

The Right to Know the Truth

The recognition of a right to know the truth235 for families of disappeared persons, as well as for society as a whole, is one of the major open issues in the case of enforced disappearance. As of today, this right has not been expressly recognized and guaranteed under any binding instrument of human rights law.236 However, in times of war,237 a provision dealing with the “right to know the fate” is included in the First Additional Protocol of 1977 to the Four Geneva Conventions.

233

234

235

236

237

Within the general context of the 2007 Convention, this provision has to be read together with Article 12.4: “Each State Party (. . .) shall ensure in particular that persons suspected of having committed an offence of enforced disappearance are not in a position to influence the progress of the investigations by means of pressure or acts of intimidation or reprisal aimed at the complainant, witnesses, relatives of the disappeared person or their defence counsel, or at persons participating in the investigation”. See supra 4.4.D. On the persistence and seriousness of this practice, see, inter alia, E/CN.4/2006/56, supra note 88, paras. 21, 35–36, 58, 68, 376, 378, 391, 434, 446, 589 and 599; and E/CN.4/2006/56/Add.1, supra note 90, paras. 60, 79 and 97. For a comprehensive study on the right to the truth, United Nations, Commission on Human Rights, E/CN.4/2006/91, Study on the Right to Truth, 8 February 2006. Article 9 of the African Charter of Human and Peoples’ Rights recognizes that “Every individual shall have the right to receive information”. But this wording is still not sufficient to address the concern about the disclosure of the truth on the fate and whereabouts of disappeared persons. The mentioned Protocol refers and applies to armed conflicts of an international nature. However, the International Red Cross and Red Crescent Movement have also made it clear that the right to know the truth about the fate suffered by victims of forced disappearance applies both to situations of international armed conflict and to those of internal armed conflict: see Resolution II of the XXIV International Conference of the Red Cross and Red Crescent Movement, Manila, 1981.

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In the implementation of this Section, the activities of the High Contracting Parties, of the Parties to the conflict and of the international humanitarian organizations mentioned in the Conventions and in this Protocol shall be prompted mainly by the right of families to know the fate of their relatives (Art. 32).238

The International Committee of the Red Cross expressed the view that the right to truth is a rule of customary international law applicable in both international and non-international armed conflicts, according to which each party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate.239 One may wonder why the right to know the truth is not affirmed with even more clarity in times of peace. Indeed the recognition and proper protection of an inherent right to know the truth remains the most pressing demand put forward by the relatives of the disappeared persons. Since 1974 the United Nations General Assembly referred to “the desire to know” as a “basic human need” in numerous resolutions regarding missing or disappeared people.240 Indeed there is a slight difference between a basic human need and a human right. Also other international bodies have insisted on the importance of recognizing the right to know to the relatives of the disappeared people. In 238

239

240

The ICRC has undertaken an international campaign for the recognition and codification of the “right to know the truth” in cases of enforced disappearances: see, inter alia, ICRC, The missing: the Right to Know. Summary of the Conclusions arising from Events held prior to the International Conference of Governmental and non-Governmental Experts, Geneva, 2003. The Geneva Conventions of 12 August 1949 also incorporate various provisions that impose obligations on belligerent parties to respond to the problem of missing combatants and establish a central search agency: see, in particular, Geneva Convention relative to the Protection of Civilian Persons in Time of War, Articles 16 and 17; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Article 122; and Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Article 136. ICRC, Customary International Humanitarian Law, Rules, Vol. I, Cambridge, 2005, Rule 117, p. 421. According to E/CN.4/2006/91 (supra note 235), military manuals and national laws of Argentina, Australia, New Zealand, Spain, United Kingdom and United States of America also make reference to the right of the families to know the fate of their missing relatives (para. 7). United Nations, General Assembly Resolutions 3220 (XXIX), 8 November 1974; 33/173, 18 December 1978; 45/165, 18 December 1990; and 47/132, 18 December 1992.


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1979, submitting to the General Assembly of the United Nations a report on the situation of disappeared people in Chile, Mr. Felix Ermacora stated that the “disappearance of these persons constitutes [. . .] an acute humanitarian problem to their relatives, who wish, and have a right, to know what happened to their family members”.241 In 1983, in a resolution on missing persons in Cyprus, the European Parliament reaffirmed the right to know the truth of the relatives of all the people unaccounted for.242 The Human Rights Committee has expressly recognized the right to the truth for families of victims of enforced disappearance, in connection with the right not to be subjected to torture or ill-treatment, given the psychological torture which the relatives of missing persons undergo.243 Neither the 1992 Declaration nor the 1994 Interamerican Convention address the issue of the right to truth. In 1997 the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, chaired by Mr. Louis Joinet, delivered its Final Report on the question of the impunity of perpetrators of human rights violations. On that occasion, the right to truth was presented as a fundamental principle in order to fight against impunity: It is not simply the right of any individual victim or his nearest and dearest to know what happened, a right to the truth. The right to know is also a collective right, drawing upon the history to prevent violations from recurring in the future. Its corollary is a “duty to remember” on the part of the State: to be forearmed against the perversions of history that go under the names of revisionism or negationism, for the history of its oppression is part of a people’s national heritage and as such must be preserved. These, then, are the main objectives of the right to know as a collective right.244

For the first time, the right to know the truth was seen as a right not belonging only to the direct victims and their relatives, but to the national society as a whole. In its 1998 Report the United Nations Working Group on Enforced or Involuntary Disappearances expressly recognized the right that assists the victims of gross violations of human rights and their relatives to know the

241 242 243 244

A/34/583/Add.1, supra note 137, para. 178. European Parliament, Resolution on Missing Persons in Cyprus, 11 January 1983. HRC, Case Quinteros, supra note 138, para. 14. United Nations, Commission on Human Rights, Question of the impunity of perpetrators of human rights violations, E/CN.4/Sub.2/1997/20, 26 June 1997, para. 17.

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truth about what has happened and in particular about the identity of the authors of the facts that originated the violations.245 The 1998 United Nations Guiding Principles on Internal Displacement246 establish that: All internally displaced persons have the right to know the fate and whereabouts of missing relatives. The authorities concerned shall endeavour to establish the fate and whereabouts of internally displaced persons reported missing, and cooperate with relevant international organizations engaged in this task. They shall inform the next of kin on the progress of the investigation and notify them of any result (Principle 16.1 and 2).

Within the context of the case law of the Interamerican Court of Human Rights, the demand to recognize the right to know the truth was put forward for the first time in 1997.247 On that occasion the Court, considering that the claim referred to a right not codified within the American Convention, admitted that it may correspond to a concept “being developed in case law and doctrine”. However, in the specific case, this right was seen as already covered by its decision to order the respondent State to investigate the violations of the American Convention.248 The right to know the truth was invoked again in 2000 in the Bámaca Velásquez case249 and afterwards it has constantly been alleged by representatives of victims in their complaints in cases of enforced disappearances. As both the American Convention and the 1994 Interamerican Convention lack a specific provision addressing the issue, the Interamerican Court has managed to recognize a violation of the right to know the truth of the relatives of the victims by considering as violated Articles 8 (right to a fair trial) and 25 (right to judicial protection) of the American Convention.

245 246

247

248 249

UNGWEID, Annual Report for 1998, E/CN.4/1999/62, 28 December 1998. E/CN.4/1998/53/Add.2, 11 February 1998. These Principles are embodied in a document presented to the Commission on Human Rights by the Special Representative of the Secretary General on the matter. Their divulgation and application have been encouraged by United Nations General Assembly Resolution 56/164, 19 December 2001. IACHR, Case Castillo Páez v. Peru, judgment of 3 November 1997 (Merits) and judgment of 27 November 1998 (Reparations), supra 2.3.H. IACHR, Case Castillo Páez (Merits), supra note 247, para. 86. IACHR, Case Bámaca Velásquez v. Guatemala, judgment of 25 November 2000 (Merits), paras. 180–197, supra 2.3.N.


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This approach, which has since then been reiterated in all judgments concerning cases of enforced disappearance, tends to link the right to know the truth with the judicial aspects of an enforced disappearance and, mainly, with the lack of effective, impartial and thorough investigations and trials. The Court has chosen to recognize the right to know the truth by generally condemning the climate of impunity which surrounds cases of enforced disappearance and trying concretely to oppose it. However, in a recent judgment concerning a case of collective disappearance which took place in Colombia, the representatives of the victims alleged the violation of the right to know the truth under a slightly different perspective, relating it also to the freedom of expression (Art. 13 of the American Convention). El derecho a la verdad tiene fundamento en una multiplicidad de derechos reconocidos en la Convención (artículos 13, 25 y 1.1). El derecho a la verdad surge como una consecuencia básica e indispensable para todo Estado Parte, ha sido desarrollado por el Derecho Internacional de los Derechos Humanos, y su reconocimiento puede constituir un medio de reparación; El derecho a la verdad se relaciona también con el derecho a la libertad de expresión, ya que por un lado toda la sociedad tiene el irrenunciable derecho de conocer la verdad de lo ocurrido, así como las razones y circunstancias en las que aberrantes delitos llegaron a cometerse. Por otro lado, nada puede impedir a los familiares de las presuntas víctimas conocer lo que aconteció; tal acceso a la verdad supone no coartar su libertad de expresión; Después de catorce años de ocurridos los hechos, ni los familiares ni la sociedad conocen una versión completa de lo sucedido. Tampoco existe una sentencia definitiva que identifique y sancione a todos los responsables. Esta falta de información constituye una violación a la obligación del Estado de proporcionar información a la sociedad sobre cuestiones que son de indiscutible interés público y al derecho a la verdad de los familiares de las presuntas víctimas.250

250

IACHR, Case Masacre de Pueblo Bello, supra note 163, para. 214: “The right to the truth has its basis in a number of rights recognized in the Convention (Arts. 13, 25 and 1.1). The right to the truth comes as a basic and indispensable consequence for all States Parties, it has been developed by international human rights law and its acknowledgment may constitute a measure of reparation; The right to know the truth is also related to freedom of expression, as on the one hand the society as a whole has the inalienable right to know the truth about what happened, as well as about the reasons and circumstances in which aberrant crimes were perpetrated. On the other hand, nothing may prevent the relatives of the alleged victims from knowing what happened; such access to the truth calls for their freedom of expression to be unrestricted; and after over 14 years since the facts took

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The Court rejected such approach, declaring that: En cuanto al llamado derecho a la verdad, este Tribunal lo ha entendido como parte del derecho de acceso a la justicia, como una justa expectativa que el Estado debe satisfacer a las víctimas de violaciones de derechos humanos y a sus familiares y como una forma de reparación. Por ende, en su jurisprudencia la Corte ha analizado el derecho a la verdad dentro de los artículos 8 y 25 de la Convención, así como en el capítulo relativo a otras formas de reparación. Según fue recientemente señalado en el caso Blanco Romero v. Venezuela, la Corte no estima que el derecho a la verdad sea un derecho autónomo consagrado en los artículos 8, 13, 25 y 1.1 de la Convención, como fuera alegado por los representantes. El derecho a la verdad se encuentra subsumido en el derecho de la víctima o sus familiares a obtener de los órganos competentes del Estado el esclarecimiento de los hechos violatorios y las responsabilidades correspondientes, a través de la investigación y el juzgamiento. [. . .] El derecho a la verdad de los familiares fue considerado al declarar la violación de los artículos 8.1 y 25 de la Convención en relación con el artículo 1.1 del mismo instrumento.251

The effort by the Court to grant the relatives of the victims the right to know the truth, even though such a right is not expressly mentioned in the American Convention, can only be applauded. To find a textual basis, the Court linked the right to know the truth to the provisions of the Convention relating to judicial guarantees. However, the State, if it does know the truth,

251

place, neither the relatives nor society count on an exhaustive version of what happened. Nor does a judgment exist that identifies and sanctions those found to be responsible. Such a lack of information is a violation of the obligation of the State to provide society with information on matters of undeniable public interest and of the right to the truth of the relatives of the alleged victims” (unofficial translation by the authors). Ibid., paras. 219 and 220: “As for the so called right to the truth, this Tribunal has interpreted it as a part of the right to justice, as a just expectation that the State must satisfy for victims of human rights violations and their relatives and as a form of reparation. Therefore, in its case law the Court has analyzed the right to know the truth within the context of Article 8 and 25 of the Convention, as well as within the chapter on other forms of reparation. As it was recently pointed out in the case Blanco Romero and others v. Venezuela, the Court does not consider that the right to the truth is an autonomous right enshrined in Articles 8, 13, 25 and 1.1 of the Convention, as alleged by the representatives. The right to the truth is a part of the right of the victim or his relatives to obtain the clarification, by means of investigation and judgment carried out by the competent authorities, of the violations that took place and of the relevant responsibilities. [. . .] The right to the truth of the relatives has already been considered when declaring the violation of Articles 8.1 and 25 of the Convention in connection with Article 1.1” (unofficial translation by the authors).


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should be obliged to tell it to the relatives, even before and even without a trial. 252 When called upon to address the same issue, the Human Rights Chamber for Bosnia and Herzegovina,253 took a rather different approach to pursue the same aim. The legal framework the Chamber had to refer to was the European Convention on Human Rights and its Additional Protocols, which all lack any specific provision recognizing the right to know the truth. Nonetheless, all the applicants who brought complaints concerning cases of enforced disappearances alleged a violation of their right to know the truth. The Chamber recognized the existence of such a violation and declared that it amounted to a breach of Articles 3 (prohibition of torture) and 8 (right to respect for private and family life)254 of the European Convention. This kind of reasoning is closer to the subjective and psychological situation of the relatives of the victims who seek to know the truth. The European Court of Human Rights has not addressed the issue of the right to know the truth explicitly but such a right may be inferred as part of the right to be free from torture or ill-treatment, the right to an effective remedy and the right to an effective investigation and to be informed of the results of the latter.255 In addition, the Court has held that a State’s failure to conduct an effective investigation aimed at clarifying the whereabouts and fate of missing people who disappeared in life-threatening circumstances constitutes a continuing violation of its procedural obligation to protect the right to life.256 Several “soft law” instruments confirm the growing trend towards the recognition of an autonomous right to know the truth. The Principles to Combat Impunity provide that: Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and

252

253

254 255

256

E/CN.4/2006/91, supra note 235. In the light of the recent developments of international human rights law on the issue, as reflected in a study by the Commission on Human Rights and in the 2007 Convention, the right to know the truth may well be considered as an autonomous human right. In 2004, the Parliament of Bosnia and Herzegovina adopted a law on missing persons, which reaffirms the right of the families to know the fates of their missing relatives: see Bosnia and Herzegovina Official Gazette 50/04.A, Law on Missing. HRCBH, Case Palić, supra note 225. ECHR, Case Tas v. Turkey, judgment of 14 November 2004; Case Cyprus v. Turkey, judgment of 10 May 2001, supra 2.4.E. ECHR, Case Cyprus v. Turkey, supra note 255, para. 136.

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reasons that led, through massive and systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to truth provides a vital safeguard against the reoccurrence of violations (Principle 2). Irrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims’ fate (Principle 4). States must take appropriate action, including measures necessary to ensure the independent and effective operation of the judiciary, to give effect to the right to know. Appropriate measures to ensure this right may include non-judicial processes that complement the role of the judiciary. Societies that have experienced heinous crimes perpetrated on a massive or systematic basis may benefit in particular from the creation of a truth commission or other commission of inquiry to establish the facts surrounding those violations so that the truth may be ascertained and to prevent the disappearance of evidence. Regardless of whether a State establishes such a body, it must ensure the preservation of, and access to, archives concerning violations of human rights and humanitarian law (Principle 5).

Yet the fact that several Truth Commissions have been created so far may confirm that, despite the peculiarities of each commission, the establishment of the truth is seen as a precondition to the overcoming of protracted situations of gross violations of human rights. The Principles on Reparation provide that: Satisfaction should include, where applicable, any or all of the following: [. . .] b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations (Principle 22). States should develop means of informing the general public and, in particular, victims of gross violations of international human rights law and serious violations of international humanitarian law of the rights and remedies addressed by these Principles and Guidelines and of all available legal, medical, psychological, social, administrative and all other services to which victims may have a right of access. Moreover, victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations (Principle 24).

The fact that the right to know the truth can also be seen as belonging to the field of reparation in the case of gross violations of human rights does not detract from the importance of explicitly recognizing the existence of such a right.


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At the regional level, in 2005 the Permanent Council of the OAS adopted a resolution urging its members to take all measures necessary to prevent enforced disappearances and to ensure the right to truth of the relatives of those who had disappeared.257 At the XXVIII Summit, in June 2005, the member States and the associated States of the Common Market of the South (MERCOSUR) adopted a declaration which reaffirmed the right to the truth of victims of human rights violations in general and their relatives.258 In the 2002 report by Mr. Nowak it is pointed out that “any future binding instrument on enforced disappearances should precisely define the concept and the legal consequences of the right of family members of disappeared persons to know the truth”.259 At the European level, the Special Rapporteur on Enforced Disappearances noted that: The “right of families to know the fate of their relatives” is only recognized explicitly in Article 32 of Additional Protocol I to the Geneva Convention, i.e. only in the context of an international armed conflict. As shown above, the case law of different human rights bodies, and in particular that of the European Court of Human Rights relating to Article 2 ECHR, places the governments concerned under some obligation to provide the victims and their families with an effective remedy, including the duty to investigate, to bring the perpetrators to justice, to make all information and findings relating to the fate of the disappeared person available to the families, and to provide compensation to them. But the relevant case law is by no means unanimous. A future binding instrument on enforced disappearances should therefore lay down and precisely define the legal consequences of the right of family members of disappeared persons to the truth and to adequate compensation.260

Accordingly, in Resolution 1463 (2005), the Parliamentary Assembly of the Council of Europe stressed that, as regards the content of the 2007 Convention, it is considered as essential that: Family members of the disappeared should [. . .] be granted a right to the truth, that is, a right to be informed of the fate of their disappeared relatives.261

257

258

259 260 261

OAS Permanent Council, Resolution on Persons who Have Disappeared and Assistance to Members of Their Families, OAS/Ser.G.CP/CAJP-2278/05/rev.4, 23 May 2005. Comunicado conjunto de los Presidentes de los Estados Partes del MERCOSUR y de los Estados Asociados, Asunción, Paraguay, 20 June 2005. Report by Mr. Nowak, supra note 2, para. 80. See also paras. 78 and 79. Report by Mr. Pourgourides, supra note 10, paras. 50–51. Resolution 1463 (2005), supra note 38, para. 10.2.

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In the General Comment on Article 18 (prohibition of amnesty laws and similar measures) of the 1992 Declaration, adopted in 2005, the United Nations Working Group on Enforced and Involuntary Disappearances states that the right to truth and information can be inferred from Articles 4.2 (establishment of mitigating circumstances for persons who, having participated in enforced disappearances, are instrumental in bringing the victims forward alive or in providing voluntarily information which would contribute to clarifying cases of enforced disappearances) and 9 (right to a prompt and effective judicial remedy as a means of determining the whereabouts or state of health of persons deprived of their liberty) of the Declaration.262 Moreover, on 15 April 2005 the Commission on Human Rights adopted a Resolution on the right to the truth,263 where it expressly linked the right to the truth to the right to justice and the right to an effective remedy and reparation. The Commission stressed: The imperative for society as a whole to recognize the right of victims of gross violations of human rights and serious violations of international humanitarian law, and their families, within the framework of each State’s domestic legal system, to know the truth regarding such violations, including the identity of the perpetrators and the causes, facts and circumstances in which such violations took place.[. . .] [It] recognizes the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights.264

It further asked the United Nations High Commissioner for Human Rights to study the sources, the meaning and the aim of such a right in international law, as well as existing good practices on the issue, drafting recommendations in order to grant the effective enjoyment of the right to truth. The study was presented in 2006 and, among its conclusions, the High Commissioner for Human Rights declared that: The right to the truth about gross human rights violations and serious violations of humanitarian law is an inalienable and autonomous right [. . .].

262

263

264

E/CN.4/2006/56, supra note 88, para. 49. In particular, para. 2(c) of the General Comment. United Nations, Commission on Human Rights, Resolution on the Right to Truth, E/CN.4/2005/L.84, 15 April 2005. Ibid., para. 1.


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[. . .] In cases of gross human rights violations – such as torture, extrajudicial executions and enforced disappearance – serious violations of humanitarian law and other crimes under international law, victims and their relatives are entitled to the truth. The right to the truth also has a societal dimension: society has the right to know the truth about past events concerning the perpetration of heinous crimes, as well as the circumstances and the reasons for which aberrant crimes came to be committed, so that such events do not reoccur in the future. The right to truth implies knowing the full and complete truth as to the events that transpired, their specific circumstances, and who participated in them, including knowing the circumstances in which the violations took place, as well as the reasons for them. In cases of enforced disappearance, missing persons, children abducted or during the captivity of a mother subjected to enforced disappearance, secret executions and secret burial place, the right to the truth also has a special dimension: to know the fate and whereabouts of the victims. The right to the truth as a stand-alone right is a fundamental right of the individual and therefore should not be subject to limitations. Giving its inalienable nature and its close relationship with other non-derogable rights, such as the right not to be subjected to torture and ill-treatment, the right to the truth should be treated as a non-derogable right. Amnesties or similar measures and restrictions to the right to seek information must never be used to limit, deny or impair the right to the truth. The right to the truth is intimately linked with the States’ obligation to fight and eradicate impunity.265

Besides its several merits, this study provides for a clear indication of the relationship existing between the right to know the truth and amnesties and similar measures. The appropriateness of an amnesty may be discussed, approved or denied. However no such measure, which is limited to the criminal record of the person responsible, could restrict or prevent the right of the victims, their relatives and the society as a whole to know the truth.

265

E/CN.4/2006/91, supra note 235, paras. 55 and 58–60. Besides declaring the autonomous nature of the right to truth, the study points out the close links of this right to the State’s duty to protect and guarantee human rights and to the State’s obligation to conduct effective investigations into gross human rights violations and to guarantee effective remedies and reparation. The right to the truth is also linked to the rule of law and the principles of transparency, accountability and good governance in a democratic society, the right to legal and judicial protection, the right to family life, the right to an effective investigation, the right to a hearing by a competent, independent and impartial tribunal, the right to obtain reparation, the right to be free from torture and ill-treatment and the right to seek and impart information.

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In the drafting of the 2007 Convention the opportunity of recognizing a “right to know the truth” instead of a mere “need to know the truth”266 was the subject of several debates. The outcome mirrors a substantial evolution in international human rights law. A reference to the right to know the truth has been inserted into the preamble: Affirming the right to know the truth about circumstances of an enforced disappearance and the fate of the disappeared person, and the respect of the right to freedom to seek, receive and impart information to this end.

The key development is an autonomous paragraph dealing with the right to truth, which, notwithstanding the objections put forward by some delegations participating in the negotiations, was inserted with the active support of all the non governmental organizations present, the representatives of the relatives of the victims, the International Committee of the Red Cross and the Argentine, Chilean, Mexican, Bolivian, Costa Rican and Italian delegations. Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard (Art. 24.2).

In this regard, it is important to recall the broad notion of “victim” of enforced disappearance given by the 2007 Convention (the disappeared person and any individual who has suffered harm as a direct result of an enforced

266

This wording was proposed and backed by the representatives of the United States, who argued that within the whole international law framework the right to truth does not exist nor does it have acceptable juridical grounds for being recognized. In September 2005, when the text of the Convention was adopted by the Intersessional Open-ended Working Group, the delegation of the United States of America formally declared their reservation both to the preambular sentence and to Article 24.2: “Reservations include, but are not limited to [. . .] preambular paragraph 7 and Article 24, paragraph 2, on the right to truth. This is a notion that the United States views only in the context of freedom of information, which is enshrined in Article 19 of the International Covenant on Civil and Political Rights, consistent with our long-standing position under the Geneva Conventions. We are grateful for the goodwill shown in seeking compromise language in the preamble, but our reservations remain concerning this issue, including with respect to Article 24, paragraph 2, which we read in the same light” (E/CN.4/2006/57, supra note 49, Annex II).


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disappearance).267 Paragraph 2 of Article 24, providing for positive obligations of States Parties to grant victims the right to know the truth, finally addresses the needs and demands expressed by the relatives of victims of gross human rights violations all over the world. As it does not allow any exception, the right to know the truth must be understood as a non-derogable right. Article 24.2 of the 2007 Convention does not specifically address the collective dimension of the right to truth. However, it does not deny it either. From the general wording used in the preambular paragraph dealing with the same issue, it can be inferred that a State which provides for public forms of disclosure of the truth, such as reports of Truth and Reconciliation Commissions, can only comply with the spirit of the 2007 Convention. As it has already been remarked, some decisions by the Interamerican Court of Human Rights and some reports tend to consider the right to know the truth as a form of reparation for the relatives of the victim. From the point of view of the victim, what is most important is to know the truth, irrespective of whether he gets it as a form of reparation or as the application of an autonomous right. However, the choice of the 2007 Convention, where the right to know the truth clearly qualifies as an autonomous right, different from the measures of reparation, seems to be more precise also considering that the refusal to disclose the fate and whereabouts of a victim is a constitutive element of the offence of enforced disappearance. At the moment of the adoption of the draft 2007 Convention, the United States formally expressed its “intent to interpret the Right to Truth in the preamble and in Article 24.2 consistent with the Commission on Human Rights Resolution on the Right to Truth (2005/66), which states that the right may be recognized in various legal systems, as freedom of information, the right to know, or the right to be informed, and also consistent with the International Covenant on Civil and Political Rights which speaks of the right to seek, receive and impart information”.268 Apparently, the expression “right to know the truth” does not seem acceptable to the United States which prefers the variation “right to freedom to seek, receive and impart information”. The United States explains that it “is committed to advancing the cause of families dealing with the problem of missing persons; however, it does not acknowledge any new international right or obligation in this

267 268

See infra 4.10. A/HRC/1/G/1, supra note 7.

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regard. For the United States, which is not a Party to the 1977 Additional Protocol I to the Geneva Conventions and has no obligations vis-à-vis any “right to truth” under Article 32 of that instrument, families are informed on the fate of their missing members based on the longstanding policy of the United States and not because of Article 32”.269 While the preamble of the 2007 Convention mentions both the “right to know the truth” and the “right to freedom to seek, receive and impart information”, one may wonder what the difference between the two concepts is. If any difference is to be found, one may wonder whether the United States, which does not recognize any legal obligation to tell the truth, reserves for itself the possibility to impart to the victims information which is not true, in the cases where exceptions to its “longstanding policy” would be allowed.

4.12

Respect for Human Remains

One of the most common features of cases of disappearance, once the material victim has been killed, is the further violation of his mortal remains. Human remains of disappeared persons have been thrown from airplanes into the ocean, blown up by dynamite, chopped up and dispersed in different places or buried in common graves. In 1984 the Argentine Truth Commission (CONADEP)270 tried to address the question why also the bodies had been destroyed, asking whether it had been done to try to wipe out all traces of a criminal act. The answer was the following: We do not think this is sufficient explanation. There was something more, which had to do with the methodology of disappearance. First it was the people, their absence giving hope to the relatives that the kidnap victim would be freed and return; then the concealment and destruction of documentation, which undoubtedly existed in every case, prolonging the uncertainty about what had happened, and finally, the nameless bodies, without identity, driving people distraught at the impossibility of knowing the specific fate of their loved one. It was a bottomless pit of horror. This is why we think that the nameless bodies fit into the same way of thinking that took the initial decision to make people disappear: wiping out the identity of the corpses magnified the shadow hanging over the thousands of disappeared of whom all trace was lost after their arrest or kidnapping.

269 270

Ibid. See supra 1.8.A.


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It was another way of paralysing public protest, of ensuring the silence of the relatives. By giving them hope that their loved ones might be alive, in the nebulous category of missing persons, an ambiguity was created which forced the relatives into isolation, frightened to do anything which might annoy the government. They were terrified by the mere idea that their own actions might decide whether their son, daughter, father or brother joined the lists of the dead. It was also a way of trying to stall investigation into the facts. By the covering-up process, the apportioning of individual responsibility was blurred, the shadow of suspicion was cast over a great many military officers – unless they could prove otherwise, which was almost impossible – as to their personal role in the direction or execution of these crimes. Lastly, at the heart of this policy of total disappearance lay the prevention by every possible means of solidarity being shown by the population in general, with all the protests and demands this would lead to within the country, and the knowledge abroad that behind the facade of a fight against a terrorist minority lurked genocide.271

In certain countries the disappearance of the human remains or their mutilation were also intended to violate the cultural beliefs and customs of the local population. This holds particularly true in Guatemala and, in general, where indigenous peoples are involved. The Commission for Historical Clarification for Guatemala (CHC)272 reported that: The testimonies received by the CHC bear witness to the wide range of circumstances which, during the armed confrontation, prevented thousands of Guatemalans from observing the rites that normally accompany the death and burial of a person. This has caused deep and persisting anguish in those sectors of the population affected. Forced disappearance was the most pernicious practise in this sense, due to the uncertainty regarding the whereabouts or fate of the victim. Likewise, the climate of terror, the military presence, as well as other circumstances related to the massacres, to flight and to persecution in the mountains, often prevented the burial of the dead. For all cultures and religions in Guatemala, it is practically inconceivable that the dead not be given a dignified burial; this assaults everyone’s values and dignity. For the Mayans, this is of particular importance due to their core belief in the active bond between the living and the dead. The lack of a sacred place where this bond can be attended is a serious concern that appears in testimonies from many Mayan communities.

271

272

CONADEP, Nunca Más – Never Again, Buenos Aires, 1984, Part I “The Repression”, Why did the bodies disappear?. See supra 1.8.C.

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The CHC has concluded that the existence of clandestine and hidden cemeteries, as well as the anxiety suffered by many Guatemalans as a result of not knowing what happened to their relatives, remains an open wound in the country. They are a permanent reminder of the acts of violence that denied the dignity of their loved ones. To heal these particular wounds requires the exhumation of secret graves, as well as the definitive identification of the whereabouts of the disappeared.273

Therefore, in its final recommendations, the CHC pointed out that: The CHC believes that the exhumation of the remains of the victims of the armed confrontation and the location of clandestine and hidden cemeteries, wherever they are found to be, is in itself an act of justice and reparation and is an important step on the path to reconciliation. It is an act of justice because it constitutes part of the right to know the truth and it contributes to the knowledge of the whereabouts of the disappeared. It is an act of reparation because it dignifies the victims and because the right to bury the dead and to carry out ceremonies for them according to each culture is inherent in all human beings. On this basis, and taking into consideration the high number of clandestine cemeteries referred to in this Report, as well as those still not publicly known, the CHC recommends: That the Government prepare and develop an active policy of exhumation and urgently present to the Congress of the Republic legislation for a Law of Exhumation which establishes rapid and effective procedures for this and which takes into account the three following recommendations. That the process of exhumation is carried out with full respect for the cultural values and dignity of the victims and their families, considering the process of exhumation not only as a judicial procedure, but above all as means for individual and collective reparation. That the bodies and remains of the victims be handed over to their relatives for a dignified burial according to their particular culture.274

Different questions may be related to the subject of mortal remains. Do States have an international obligation275 to grant proper respect to mortal remains and to provide for their exhumation, identification and restitution?

273

274 275

Guatemala: Memory of Silence, supra note 153, “Conclusions – Altered Mourning and Clandestine Cemeteries”, paras. 53–54. Ibid., “Recommendations – Reparatory Measures”, Part III. Given that nearly all domestic criminal codes grant the protection and respect of mortal remains.


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Is there any related specific human right? In the case of an affirmative answer, does this right belong to the relatives of the victims or can it be extended to the material victim, as the right to a respectful death, or even to a certain community, as a collective cultural right? And, finally, are there any international standards of treatment for the mortal remains of victims of violations of human rights? The issue of the treatment of human mortal remains had not been addressed by any binding human rights instrument before the 2007 Convention. Indeed, relevant references and rules can be found in international humanitarian law, namely in several provisions of each of the Four Geneva Conventions of 12 August 1949. For instance, Article 17 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field sets forth that: Parties to the conflict shall ensure that burial or cremation of the dead, carried out individually as far as circumstances permit, is preceded by a careful examination, if possible by a medical examination, of the bodies, with a view to confirming death, establishing identity and enabling a report to be made. [. . .] They shall further ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality of the deceased, properly maintained and marked so that they may always be found. [. . .]

Some of the provisions included in the instruments of international humanitarian law are inspired by general principles relating to the due respect to mortal remains that may be considered as general principles of law in the sense used in Article 38.1.c of the Statute of the International Court of Justice.276 Others are specifically related to circumstances existing only during armed conflicts. The first reference to the issue in a non binding instrument of human rights law may be found in the 1989 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, recommended by Economic and Social Council Resolution 1989/65.277

276

277

This general principle is also reflected in Article 2.9 of the Convention on the Protection of the Underwater Cultural Heritage (Paris, 2001): “States Parties shall ensure that proper respect is given to all human remains located in maritime waters”. United Nations, Economic and Social Council, Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Recommendation 1989/65, 24 May 1989.

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Neither the 1992 Declaration nor the 1994 Interamerican Convention, nor did the 1998 Draft Convention address the issue. The 1998 Guiding Principles of the United Nations on Internal Displacement establish that: The authorities concerned shall endeavour to collect and identify the mortal remains of those deceased, prevent their despoliation or mutilation, and facilitate the return of those remains to the next of kin or dispose of them respectfully. Grave sites of internally displaced persons should be protected and respected in all circumstances. Internally displaced persons should have the right of access to the grave sites of their deceased relatives (Principle 16.3 and 4).

The issue of the treatment of the mortal remains of people who have disappeared has been considered in some cases decided by the Interamerican Court of Human Rights. In a separate opinion attached to the judgment on a case of disappearance (Bámaca Velásquez v. Guatemala) delivered in 2002, Judge Cançado Trindade fully seized the spiritual elements of the concept of “respect for the dead”: One of the manifestations of the unity of the human kind lies in the links between the living (titulaires of the human rights) and the dead (with their spiritual legacy). Thus, e.g., the respect for the dead is due in the persons of the living. Always cultivated in the most distinct cultures and religions, the respect for the dead is safeguarded in the domain of Law, which, thereby, gives concrete expression to a universal sentiment of the human conscience. In effect, in comparative law it is found that the penal codes of numerous countries typify and sanction the crimes against the respect for the dead (such as, e.g., the subtraction and the hiding of the mortal remains of a human being). The question marks presence in national as well as international case-law. In its turn, International Humanitarian Law also imposes expressly the respect for the mortal remains of the dead persons, as well as a burial place with dignity for them.278 [. . .] But despite all the attention dedicated to the theme in the cultures and the modes of expression of the human feelings (such as literature and the arts), curiously all the rich contemporary thinking on the rights inherent to the human being has concentrated almost exclusively on the persons of the living (as titulaires of those rights), failing to recollect with sufficient clarity the links between these latter and their dead, even to determine their legal consequences. This gap ought to be filled, bearing in mind, to start with, that

278

IACHR, Case Bámaca Velásquez, judgment of 22 February 2002 (Reparations), separate opinion of Judge A.A. Cançado Trindade, para. 2.


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we all live in time, and that the legal norms are created, interpreted and applied likewise in time.279 [. . .] The respect to the mortal remains preserves the memory of the dead as well as the sentiments of the living (in particular his relatives or persons close to him) tied to him by links of affection, – this being the value juridically protected.280

Following the precedent set in the Neira Alegría and others case,281 in the Bámaca Velásquez judgment the Court ordered the respondent State, as a form of reparation, to “find out the mortal remains of Efraín Bámaca Velásquez, exhume them in the presence of his widow and relatives, as well as to give them to these latter”. On this aspect, Judge Cançado Trindade pointed out that: As already warned, it ought not to pass unnoticed that the first resolutory point of the present Judgment determines that the respondent State “must find out the mortal remains of Efraín Bámaca Velásquez, exhume them in the presence of his widow and relatives, as well as to give them to these latter”. The Court has attributed due importance to this obligation of the public power, as a measure of reparation, in the circumstances of the concrete case. As it ensues from the present Judgment, the suffering of the dead has an incidence into the very determination of the reparations, even though those no longer have legal personality. The surviving relatives are beneficiaries of the reparations also as a result of the sufferings undergone in life for the dead relative. Thus, the projection of human suffering in time is manifested (with repercussions in the domain of Law) in distinct ways: not only in the course of our lives, of the cammin di nostra vita, but also in the relations between the living and their dead.282

This obligation has been reaffirmed in all subsequent judgments of the Interamerican Court on cases of disappearance. In a recent case concerning the disappearance of a child in Guatemala,283 the Court has also ordered the respondent State to create A genetic information system to enable establishment and clarification of parentage of missing children and their identification.284

279 280 281

282

283

284

Ibid., para. 3. Ibid., para. 6. IACHR, Case Neira Alegría and others v. Peru, judgment of 19 September 1996 (Reparations), supra 2.3.E. IACHR, Case Bámaca Velásquez, (Reparations), supra note 278, separate opinion of Judge A.A. Cançado Trindade, para. 14. IACHR, Case Molina Theissen v. Guatemala, judgment of 3 July 2004 (Reparations), supra 2.3.O. Ibid., para. 91 b).

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This measure of reparation has to be read also in connection with the existence of a national programme of exhumations. It is aimed at granting the identification of as many victims of disappearance as possible. In another recent judgment, concerning a case of collective disappearances in Colombia where the existence of common graves was alleged, together with the particularly inhuman treatment of some of the few human remains exhumed, the Court further elaborated on its case law: La Corte considera indispensable que, para efectos de las reparaciones, el Estado busque e identifique a las víctimas desaparecidas. Pese a que el Tribunal ha tomado en consideración las acciones emprendidas por el Estado para recuperar los restos de las personas desaparecidas, éstas no han sido suficientes ni efectivas. El Estado deberá completar dichas labores, así como cualquier otra que resulte necesaria, para lo cual deberá emplear todos los medios técnicos y científicos posibles, tomando en cuenta las normas pertinentes en la materia, tales como las establecidas en el Manual de Naciones Unidas sobre la Prevención e Investigación Eficaces de Ejecuciones Extralegales, Arbitrarias y Sumarias, así como en el Informe del Secretario General sobre derechos humanos y ciencia forense presentado de conformidad con la resolución 1992/24 de la Comisión de Derechos Humanos del Consejo Económico y Social de las Naciones Unidas. Independientemente de estas acciones específicas, el Estado debe garantizar que las entidades oficiales correspondientes hagan uso de estas normas como parte de su instrumental para efectos de la búsqueda e identificación de personas desaparecidas o privadas de su vida.285

The way this measure of reparation is drafted tends to create a general obligation for State authorities towards all the dead victims of gross violations of human rights, such as arbitrary executions and massacres. The Court has

285

IACHR, Case Masacre de Pueblo Bello, supra note 163, paras. 270 and 271: “The Court considers it to be indispensable that, for the purposes of reparations, the State searches for and identifies the disappeared victims. Besides having taken into account the actions carried out by the State to locate the remains of the disappeared, the Court considers that these have been neither sufficient nor effective. The State shall complete these operations, as well as all others that may be necessary. It shall use all possible technical and scientific means, taking into account the existing rules on the issue, as the United Nations Manual on the Effective Prevention and Investigation on Extra-legal, Arbitrary and Summary Executions, as well as the Report of the Secretary General on human rights and forensic science presented in conformity with Resolution 1992/24 of the Commission on Human Rights of the Economic and Social Council. Notwithstanding these specific actions, the State shall ensure that all relevant official authorities apply these rules as one of their instruments to search for and identify persons who have disappeared or that have been deprived of their lives” (unofficial translation by the authors).


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emphasized this obligation in its 2003 judgment on the case Juan Humberto Sánchez v. Honduras.286 The next of kin have the right to know where the remains of their beloved one are, and [this] constitutes a just expectation that the State must satisfy with all the means available to it. The Court has also stated recently that “delivery of the mortal remains is in itself an act of reparation as it leads to restore the dignity of the victims, to honour the value of their memory to those who were their beloved ones, and to allow them to adequately bury them”.287

Therefore, the Court ordered as a measure of reparation to Honduras to provide the conditions required to transfer the mortal remains of the victim to the place chosen by his relatives at no cost to them.288 In another judgment on a case of enforced disappearance, the Court has declared that: El derecho de los familiares de conocer dónde se encuentran los restos mortales de éstas constituye una medida de reparación y por tanto una expectativa que el Estado debe satisfacer a los familiares de las víctimas. Asimismo, el

286

287 288

IACHR, Case Juan Humberto Sánchez v. Honduras, judgment of 7 July 2003, Ser. C No. 99. The victim of the case had been abducted from his parents’ house in 1992 by a group of armed soldiers and taken by force to a military detachment. Ten days after the abduction, the lifeless body of the victim was found in a river, in a state of advanced decay, by a group of other people. The dead man had a rope around his neck, crossing his chest and binding his hands and feet behind his back; there was a bullet wound that had entered his forehead and exited at the base of the skull; his nose, ears and genitals had been severed and there were signs of flaying on his back. The local authorities ordered the body of the victim to be buried immediately at the place where it was found, due to the advanced state of decay. Since then, his family has not been allowed to exhume the remains and give them an appropriate burial in accordance with their religious beliefs. Ibid., para. 187. Indeed the mortal remains of the victim were exhumed by State authorities on 24 August 2004. However, they were not immediately handed over to the relatives, but they were taken into custody by the State, which transferred them to the National Institute of Forensic Medicine, allegedly to carry out some genetic tests. Over two years later the mortal remains of the victim still remain in the State’s custody and the relatives ignore their actual whereabouts and state of conservation. Indeed, they are demanding the immediate restitution of the human remains of their loved one, as this situation is causing them further anguish and suffering (at least before the exhumation they had known where the remains of their loved one were). Accordingly, they asked the IACHR to adopt provisional measures to obtain the immediate restitution of the mortal remains of the victim. The Court did not award such measures, considering that the issue is instead related to the implementation of the judgment and provisional measures are not the means which should be used to address the problem.

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Tribunal ha señalado que los restos mortales de una persona merecen ser tratados con respecto ante sus deudos, por la significación que tienen para éstos.289

The issue of the treatment of mortal remains of disappeared persons does not concern Latin America alone. For instance, in his 2002 report to the Commission on Human Rights Mr. Nowak has pointed out that in general, “a decent burial can also be regarded as a form of moral or social rehabilitation of the victim”.290 In its 2005 report the United Nations Working Group on Enforced or Involuntary Disappearances, referring to Iraq, noted that: The Working Group had previously expressed concern over the protection of mass grave sites. The concern remains valid as mass graves and their preservation are crucial to investigation. The Working Group urges the government of Iraq to make its best efforts to protect mass grave sites.291

As the issue of locating, identifying and returning the human remains of victims of disappearance is not exclusively related to the existence of an armed conflict but extends also to times of peace, the lack of provisions in this sense in all relevant human rights treaties was a major gap within the international framework. Article 24.3 of the 2007 Convention arrives to fill the gap and expressly establishes an obligation for States Parties to locate, respect and return the remains of people who have disappeared: Each State Party shall take the necessary measures to search for, locate and release disappeared persons and, in the event of death, locate, respect and return their human remains.292

289

290 291 292

IACHR, Case La Cantuta, supra note 119, para. 231: “The right of the relatives to know the location of the mortal remains of the material victims represents a form of reparation and, as such, an expectation by the relatives of the victims that must be satisfied by the State. The Court has also pointed out that the mortal remains of a person must be treated with respect in front of the relatives of the person for the special significance that they have for the latter” (unofficial translation by the authors). Report by Mr. Nowak, supra note 2, para. 87. E/CN.4/2006/56, supra note 88, para. 299. Within the general context of the 2007 Convention, this provision has to be read together with Article 15 (“States Parties shall cooperate with each other and shall afford one another the greatest measure of assistance with a view to assisting victims of enforced disappearance, and in searching for, locating and releasing disappeared persons and, in the event of death, in exhuming and identifying them and returning their remains”); Article 17.3 g, which provides for the maintenance of registers containing information on, “in the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the human remains”; and Article 18.1 g, which provides for the right


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Under the 2007 Convention, the obligation to locate, respect and return the human remains of the victims of enforced disappearance is considered as an autonomous human right and not as a form of reparation. The obligation is obviously due to their relatives and, in certain cases, to the community to which the victim belonged. It may also be envisaged that the national society as a whole has a right to know where the human remains of disappeared people are located and to be sure that they are respected, even if there is nobody who claims their return. However, the same obligation is also due to the material victim, in the sense that the lack of respect for his human remains amounts to an outrage upon personal dignity, as a sort of particular humiliating and degrading treatment. With the precedent of Article 24.3 of the 2007 Convention, one may also think that the lack of respect for the mortal remains of victims of gross violations of human rights, and in particular the creation of mass or secret graves, can qualify as a war crime under Article 8.2.xxi of the 1998 Rome Statute293 and even as a crime against humanity under Article 7.1.k,294 provided that the word “person” is intended in a broad sense to mean also what remains after the death.

4.13

The Forms of Reparation

The concept of forms of reparation of serious violations of human rights, such as enforced disappearances, has undergone significant developments during the last few years. At present, “reparation” tries to cover not only the physical and economic damages suffered, but also the moral aspect and, somehow, the social consequences of certain offences. Such a broad approach is most needed in cases of enforced disappearances, where not only the material victim is harmed, but also his relatives and, to a different extent, society as a whole. Pecuniary redress would be insufficient and would leave unaddressed several needs related to the phenomenon, including guarantees of non-repetition.

293

294

to access to information on, “in the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the human remains”. Article 8.2.xxi: “Committing outrages upon personal dignity, in particular humiliating and degrading treatment”. Article 7.1.k: “Other inhuman acts of a similar character intentionally causing great suffering, or serious injury to the body or to mental or physical health”.

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Since the first views delivered on cases of disappearance at the beginning of the Eighties, the Human Rights Committee did not limit itself to urging governments to pay pecuniary compensation but also pointed out the need for the governments found responsible to: – – –

take all necessary steps to establish what had happened to the material victims; bring to justice any people found to be responsible for their disappearance; and ensure that similar violations do not occur in the future.295

In cases of the enforced disappearance of children the Human Rights Committee encouraged the State found to be responsible to “persevere in its efforts to investigate the disappearance of children, determine their true identity, issue to them identity papers and passports under their real names, and grant appropriate redress to them and their families in an expeditious manner”.296 In another case, the Committee pointed out that “appropriate remedy should include damages and an appropriate protection of members of the victim’s family from harassment”.297 The Committee has always promoted a concept of reparation or remedy which not only tends to grant compensation, but also satisfaction and guarantee of non-repetition. In its three first judgments on the issue, the Interamerican Court of Human Rights ordered the respondent State to pay pecuniary and non-pecuniary damage, without adding other forms of reparation. In the subsequent judgment on the case Garrido and Baigorria, the Court mentioned also the obligation of the respondent State to investigate the facts and to prosecute and sanction those found to be responsible.298 Starting with the judgment on the Benavides Cevallos case, the Court developed the concept of “other forms of reparation”, concretely tending to grant satisfaction to the victims and their relatives in the form of rehabilitation and restoration of honour besides the mere pecuniary compensation. On that occasion, as a form of

295

296

297

298

HRC, Case Bleier v. Uruguay, Communication No. R.7/30, 29 March 1982, para. 15, supra 2.2.A. HRC, Case Mónaco v. Argentina, Communication No. 400/1990, 3 April 1995, para. 12, supra 2.2.G. HRC, Caso Bautista v. Colombia, Communication No. 563/1993, 27 October 1995, para. 10, supra 2.2.H. IACHR, Case Garrido and Baigorria v. Argentina, judgment of 27 August 1998 (Reparations), para. 74, supra 2.3.G.


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reparation the Court ordered the respondent State to commemorate the name of Ms. Benavides Cevallos by giving it to streets, schools and public buildings.299 The case law of the Interamerican Court further developed in the decision on El Caracazo, where, besides ordering the payment of pecuniary compensation and the investigation of the facts, the Court also mentioned a number of obligations aimed at the non-repetition of the crime: – –

–

Locate, exhume, identify by means of undoubtedly suitable techniques and instruments, the remains of the victims. Adopt all necessary provisions to provide the education and training of all members of its armed forces and its security agencies on principles and provisions of human rights protection and regarding the limits to which the use of weapons by law enforcement officials is subject, even in a state of emergency. Adjust operational plans regarding public disturbances to the requirements of respect and protection of those rights, adopting to this end, among other measures, those geared towards controlling the actions of all members of the security forces in the field of action to avoid excess.300

Since this leading case, the Court has always ordered measures of reparation aiming not only at the location, identification and restitution of mortal remains of material victims,301 but also at preventive ends, such as educational programmes on human rights and international humanitarian law for members of the army and security forces.302 In the case Trujillo Oroza v. Bolivia,303 the Court took an additional step forward, ordering the State to introduce an autonomous provision in its criminal code codifying enforced disappearance in accordance with the definition of the offence contained in the 1994 Interamerican Convention.304 In the attempt to adopt measures which could help to restore the honour

299

300

301 302 303 304

IACHR, Case Benavides Cevallos v. Ecuador, judgment of 19 June 1998 (Reparations), supra 2.3.J. IACHR, Case El Caracazo v. Venezuela, judgment of 26 November 2002 (Reparations), supra 2.3.K. See supra 4.12. See also IACHR, Case Neira Alegría and others, supra note 281. See, inter alia, IACHR, Case La Cantuta, supra note 119, paras. 239–242. IACHR, Case Trujillo Oroza, supra note 98. See also IACHR, Cases Gómez Palomino, supra note 56, Blanco Romero and others, supra note 98; and Goiburú and others, supra note 4.

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and the dignity of the victim and may have a strong impact on civil society as a whole, the Court also ordered to assign the name of the victim to a school and prescribed to declare a national day of enforced disappeared detainees. Also in the case 19 Comerciantes 305 the Court ordered to the respondent State the adoption of measures aiming at restoring the dignity of the victim, such as the building of a monument and the holding of a public ceremony where governmental authorities were to issue an apology to the relatives of the victims. Further, the Court ordered the respondent State to pay for the medical treatment and psychological therapy of the relatives in need of such measures. In the case Gómez Palomino, the Court interpreted the concept of rehabilitation by ordering the respondent State to offer special programmes of education to all the victim’s relatives who had been forced to leave their studies, if they so wished, and a special programme of bilingual (Quechua-Spanish) reading and writing skills to the mother of the victim who was illiterate.306 The set of reparation measures awarded by the Interamerican Court307 in cases of enforced disappearance ranges from compensation to restitution, rehabilitation, satisfaction and guarantee of non-repetition. At present, it represents the most advanced jurisprudence on the matter. Unfortunately the same cannot be said about the European Court of Human Rights as it has constantly neglected both judicial and doctrinal developments on the issue of reparation for grave violations of human rights. Sometimes the Court has decided to cover only material damages and to exclude any sum for non-pecuniary damages. In cases of enforced disappearance, notwithstanding the demands of the applicants, no forms of reparation different from pecuniary compensation have ever been taken into account by the Court. Instead of taking advantage of the case law already established by the Interamerican Court, the European Court seems to disregard the need for measures aiming at rehabilitation, satisfaction and guarantees of non-repetition. The attitude hitherto taken by the European Court may well be seized from a passage of a decision taken in 2003 where the Court gave the following answer to the demand expressed by the applicant to order the

305 306 307

IACHR, Case 19 Comerciantes, supra note 62. IACHR, Case Gómez Palomino, supra note 56. IACHR, Case La Cantuta, supra note 119, attached concurring opinion of Judge S. García Ramírez, paras. 24–30.


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“State found responsible for the violation to carry out prompt, impartial and thorough investigations in order to judge and sanction those responsible”: It cannot be assumed in such cases that a future investigation can usefully be carried out or provide any redress, either to the victim’s family or to the wider public by ensuring transparency and accountability. The lapse of time and its effect on the evidence and the availability of witnesses inevitably render such an investigation unsatisfactory or inconclusive, by failing to establish important facts or put to rest doubts and suspicions. Even in disappearance cases, where it might be argued that more is at stake since the relatives suffer from the ongoing uncertainty about the exact fate of the victim or the location of the body, the Court has refused to issue any declaration that a new investigation should be launched. It rather falls to the Committee of Ministers acting under Article 46 of the Convention to address the issues as to what may be required in practical terms by way of compliance in each case.308

The Court entered into an unwarranted speculation about the possible results of a domestic investigation, taking for granted that it would be unsuccessful. In doing so, the Court showed a complete disregard for the sentiments of the relatives of the victim and gave too restrictive an interpretation of the concept of just satisfaction enshrined in Article 41 of the European Convention. The Court also referred to the possibility of the Committee of Ministers of ordering such an investigation. However, it may be asked how the Committee could do so, considering that under Article 46.2 of the European Convention it can only “supervise the execution” of a judgment rendered by the Court and is not entitled to establish forms of reparation different from those ordered by the Court. Mr. Manfred Nowak, in his 2002 report to the Commission on Human Rights, formulated the following remarks on the full range of forms of reparations in cases of enforced disappearance: Reparation must, therefore, be provided to both types of victims [the disappeared persons as well as their relatives]. Since the question of whether the disappeared person is still alive or has been killed often remains unanswered, the measures of reparation shall be designed in a way that they can be applied to both the disappeared person and their relatives. Restitution means that the disappeared person, if still alive, must be immediately released. If he or she has been killed, restitution includes the exhumation and identification of the body and the restoration of the mortal remains to the

308

ECHR, Case Finucane v. United Kingdom, judgment of 1 July 2003, para. 89. This case does not relate to enforced disappearance.

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next of kin for the purpose of a decent burial in accordance with the religious practices of the victim and the family. [. . .] If disappeared persons have survived and finally escape or are released, they usually suffer from post-traumatic stress disorders which require, as a matter of rehabilitation, extensive medical, psychological and social care and treatment at the expense of the government responsible. The families, who often for many years have attempted, by various legal, political and other means, to establish the fate and whereabouts of their loved ones, also have a valid claim to rehabilitation, by means of legal and social services, and often they are also in need of medical and psychological care as a result of their suffering. Satisfaction is a very broad category of reparations which is of particular significance in cases of enforced disappearance. It starts with an apology by the authorities of the government concerned and the disclosure of all relevant facts at the disposal of the authorities. If the government is not in possession of the relevant facts (because of lack of control of security forces or because the disappearance occurred under a previous government), it is under an obligation to carry out an in-depth investigation by all appropriate means, including exhumations, to establish the truth about the fate and whereabouts of the disappeared persons and about the perpetrators of the disappearance. This can be achieved by ordinary criminal investigations or by the establishment of special investigative bodies entrusted with searching for disappeared persons, truth commissions, etc. In addition to establishing the truth and providing information to the victims and the society at large, the authorities are also under an obligation to bring the perpetrators to justice. As the Human Rights Committee rightly concluded, in the case of particularly serious human rights violations, such as enforced disappearances, justice means criminal justice, and purely disciplinary and administrative remedies cannot be deemed to provide sufficient satisfaction to the victims. Perpetrators of enforced disappearance should, therefore, not benefit from amnesty laws or similar measures. Further measures of satisfaction include public commemorations to pay tribute to the victims and thereby contribute to the process of building justice and peace. Guarantees of non-repetition start with the cessation of continuing violations. In the case of enforced disappearance, the human rights violation only stops when the fate and the whereabouts of the disappeared person are considered clarified beyond reasonable doubt. If a government is willing to disclose all information concerning past disappearances and to carry out the necessary investigations to establish the truth, such measures usually also provide certain guarantees of non-repetition. Most important, however, is that States include the act of enforced disappearance as a criminal offence with appropriate punishment in their criminal code, that they actually bring the perpetrators to justice and that they adopt the necessary preventive measures, as discussed above. [. . .] If a disappeared person is released after a couple of years or is killed, compensation for material damage, such as loss of income or opportunities, might amount to a substantial sum of money [. . .]. Similarly, the mental and physical suffering of both disappeared persons and the relatives might require


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the governments concerned to pay considerable sums of compensation for non-material or moral damage.309

Most of the remarks above were echoed in 2005 by the Special Rapporteur to the Parliamentary Assembly of the Council of Europe, Mr. Pourgourides.310 In its Resolution 1463 of 2005, the Parliamentary Assembly of the Council of Europe took advantage of the report, indicating that the right to reparation should cover: –

– –

restitution, i.e. immediate release of the disappeared person if he or she is still alive, or the exhumation and identification of the body and the return of the mortal remains to the next of kin for a decent burial, as well as rehabilitation, medical, psychological and social care at the expense of the government responsible; satisfaction, i.e. an apology by the authorities, guarantees of non-repetition, the disclosure of all relevant facts following an in-depth investigation and the prosecution of perpetrators; compensation for material damage (including a realistic assessment of lost income and maintenance of dependents, as well as legal costs), and an adequate sum for the mental and physical suffering of both the disappeared persons and their relatives.311

Another important reference on the matter can be found in Recommendation (2006) 8 of the Committee of Ministers of the Council of Europe on assistance to crime victims, according to which the families of disappeared persons will be recognized as “victims” and consequently benefit from the types of assistance, protection, information and access to justice as well as compensation provided for in that text.312 In its case law on cases of enforced disappearance, the Human Rights Chamber for Bosnia and Herzegovina ordered respondent States to provide measures of reparation including pecuniary redress, to take all necessary steps to ascertain the whereabouts or fate of the applicants and to secure their release if still alive and to report to the Chamber on the steps taken and the results of any investigations carried out. The Chamber also ordered respondent States, in the case of death of the victims, to identify and return

309 310 311 312

Report by Mr. Nowak, supra note 2, paras. 85–90. Report by Mr. Pourgourides, supra note 10, paras. 62–66. Resolution 1463 (2005), supra note 38, paras. 10.5.1–10.5.3. Council of Europe, Committee of Ministers, Recommendation Rec (2006) 8 on assistance to crime victims, 14 June 2006. See also Reply from the Committee of Ministers, Enforced Disappearances, Doc. 10973, 24 June 2006.

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their mortal remains to their relatives for proper burial. In the Srebrenica cases,313 the Chamber ordered the Serb Republic to disseminate, as a form of reparation for social damage, the information contained in the judgment as widely as possible within the territory of the Serb Republic, to make a collective compensation award to benefit the family members of the people who had been missing from Srebrenica since July 1995, to make a lump sum contribution to the Foundation of the Srebrenica-Potočari Memorial and Cemetery for the total amount of 4 million convertible marks and to make a public acknowledgement of responsibility for the Srebrenica events and a public apology to the victims’ relatives and the Bosniak community of Bosnia and Herzegovina as a whole. The practice of the Chamber on reparations follows the approach undertaken by the Interamerican Court rather than the European one. As for the international legal instruments dealing with the issue of forms of reparation in cases of disappearance, the 1992 Declaration provides that: The victims of acts of enforced disappearance and their family shall obtain redress and shall have the right to adequate compensation, including the means for as complete a rehabilitation as possible. In the event of the death of the victim as a result of an act of enforced disappearance, their dependants shall also be entitled to compensation (Art. 19).

In 1997 the United Nations Working Group on Enforced and Involuntary Disappearances released a General Comment on this provision, pointing out that: [. . .] States are under an obligation to adopt legislative and other measures in order to enable the victims to claim compensation before the courts or special administrative bodies empowered to grant compensation. In addition to the victims who survived the disappearance, their families are also entitled to compensation for the suffering during the time of disappearance and in the event of the death of the victim, his or her dependents are entitled to compensation. Compensation shall be “adequate”, i.e. proportionate to the gravity of the human rights violation (e.g. the period of disappearance, the condition of detention, etc.) and to the suffering of the victim and the family. Monetary compensation shall be granted for any damage resulting from an enforced disappearance such as physical or mental harm, lost opportunities, material damage and loss of earnings, harm to reputation and costs required for legal or expert assistance. Civil claims for compensation shall not be limited by

313

HRCBH, Case Selimović (Srebrenica cases) and others v. Serb Republic, judgment of 7 March 2003, supra 2.5.D.


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amnesty laws, made subject to statutes of limitation or made dependent on penal sanctions imposed on the perpetrators. [. . .] In addition to the punishment of the perpetrators and the rights to monetary compensation, the right to obtain redress for acts of enforced disappearance under Article 19 also includes “the means for as complete a rehabilitation as possible”. This obligation refers to medical and psychological care and rehabilitation for any form of physical or mental damage as well as to legal and social rehabilitation, guarantees of non repetition, restoration of personal liberty, family life, citizenship, employment or property, return to one’s place of residence and similar forms of restitution, satisfaction and reparation which may remove the consequences of enforced disappearance.314

The 1994 Interamerican Convention does not include any provision addressing the subject. The 1998 Draft Convention set forth an obligation of States Parties to “provide prompt and appropriate reparation for the damage caused to the victims of a forced disappearance” (Art. 4, e), describing the forms of reparation in these terms: States Parties guarantee, in all circumstances, the right to reparation for the harm caused to the victims of forced disappearance. For the purposes of this Convention, the right to reparation comprises restitution, compensation, rehabilitation, satisfaction, and the restoration of the honour and reputation of the victims of the offence of forced disappearance. The rehabilitation of victims of forced disappearance will be physical and psychological as well as professional and legal (Art. 24, 1.2).

The issue of the right to reparation and guarantees of non-repetition is addressed also by the Principles to Combat Impunity: Reparations may also be provided through programmes, based upon legislative or administrative measures, funded by national or international sources, addressed to individuals and to communities. Victims and other sectors of civil society should play a meaningful role in the design and implementation of such programmes. Concerted efforts should be made to ensure that women and minority groups participate in public consultations aimed at developing, implementing, and assessing reparation programmes. [. . .] The right to reparation shall cover all injuries suffered by victims; it shall include measures of restitution, compensation, rehabilitation and satisfaction as provided by international law. In the case of forced disappearance, the family of the direct victim has an imprescriptible right to be informed of the fate and/or whereabouts of the

314

E/CN.4/1997/34, supra note 190, paras. 72–73 and 75.

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disappeared person and, in the event of decease, that person’s body must be returned to the family as soon as it has been identified, regardless of whether the perpetrators have been identified or prosecuted. [. . .] States shall ensure that victims do not again have to endure violations of their rights. To this end, States must undertake institutional reforms and other measures necessary to ensure respect for the rule of law, foster and sustain a culture of respect of human rights, and restore or establish public trust in government institutions.315

Indeed, the Principles on Reparation shall be considered as an indispensable reference on the issue of reparations. Besides the general principles contained in the whole document, principles from 15 to 23 specifically refer to the different forms of reparation and their contents.316 In particular, principles 19 to 23 establish: Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as: a) physical or mental harm; b) lost opportunities, including employment, education and social benefits: c) material damages and loss of earnings, including loss of earning potential; d) moral damage; e) costs required for legal or expert assistance, medicine and medical services, and psychological and social services. Rehabilitation should include medical and psychological care as well as legal and social services. Satisfaction should include, where applicable, any or all of the following: a) effective measures aimed at the cessation of continuing violations; b) verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interest of the victim, the victim’s relatives, witnesses, or persons who

315 316

Principles to Combat Impunity, supra note 107, in particular principles 32 to 38. See, inter alia, G. Echeverría, The Draft Basic Principles and Guidelines on the Right to Remedy and Reparation: An Effort to Develop a Coherent Theory and Consistent Practice on Reparation for Victims, Bangkok, 2002; and D. Shelton, Remedies in International Law, Oxford, 1999.


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have intervened to assist the victim or prevent the occurrence of further violations; c) the search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities; d) an official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim; e) public apology, including acknowledgement of the facts and acceptance of responsibility; f ) judicial and administrative sanctions against persons liable for the violations; g) commemorations and tributes to the victims; h) inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and educational material at all levels. Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention: a) ensuring effective civilian control of military and security forces; b) ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality; c) strengthening the independence of the judiciary; d) protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders; e) providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces; f ) promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises; g) promoting mechanisms for preventing and monitoring social conflicts and their resolutions; h) reviewing and reforming laws contributing to or allowing gross human violations of international human rights law and serious violations of international humanitarian law.

These principles, together with the already mentioned precedents of case law, are of the utmost importance to interpret the meaning of Article 24.5 of the 2007 Convention referring to the forms of reparation to which victims of enforced disappearance are entitled: The right to obtain reparation referred to in paragraph 4 covers material and psychological harm and, where appropriate, other modalities of reparation such as:

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a) b) c) d)

Restitution; Rehabilitation; Satisfaction, including restoration of honour and reputation; Guarantee of non repetition.317

Article 24.4 and 5 make compensation and reparation compulsory and not subject to any provision of domestic legal systems. At the moment of the adoption of the 2007 Convention, the United States of America stated that: Article 24 on the right to the truth and reparation contains text that is vague and at the same time overly specific, employs an overbroad definition of “victim”, and may not be consistent with a common law system for granting remedies and compensation.318

The criticism made by the United States does not seem fully convincing. Article 24.5 of the 2007 Convention should be qualified as good or bad not insofar as it corresponds with the common law system for granting remedies and compensation, but depending on whether or not it can effectively meet the needs of victims of enforced disappearance. In this regard, it is a good provision. Finally under the 2007 Convention, the training of law enforcement personnel on the importance of preventing and combating enforced disappearances is the subject of a specific provision (Art. 23.1).319 Rather than a form of reparation, this is considered as an autonomous obligation having a preventive character.

317

318 319

Under Article 24.4, “Each State Party shall ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation”. A/HRC/1/G/1, supra note 7. The 1994 Interamerican Convention provides that States Parties shall ensure that the training of public law-enforcement personnel or officials includes the necessary education on the offence of forced disappearance of persons (Art. VIII). The 1998 Draft Convention also established the obligation for States to provide appropriate training to public law enforcement personnel as preventive measure: “States Parties shall ensure that the training of public law enforcement personnel and officials includes the necessary education on the provisions of this Convention” (Art. 11.4). See also Article 6.3 of the 1992 Declaration, supra 3.1.B.


4.14

381

Enforced Disappearances and Children

As already remarked, children are particularly affected by enforced disappearances.320 They may greatly suffer because of the disappearance of their mother or father or both: in such cases, they live their childhood in a constant situation of uncertainty, between hope and despair. Sometimes children may be born during their mother’s captivity and subsequently adopted by the same authorities who are responsible for the disappearance of their mother.321 The disappearance of children is a phenomenon on the increase, often related to the commission of other crimes, such as child trafficking, sexual exploitation for commercial purposes or illegal forced recruitment. The evolving and articulated nature of such a hideous practice requires further development and accurate harmonization within the international legal framework. Fundamental references regarding the phenomenon of enforced disappearance of children are made in the Annual Report drafted by the Interamerican Commission on Human Rights in 1988, where a whole chapter is dedicated to the analysis of the issue.322 The Commission emphasized, inter alia, the importance of the creation of “genetic banks” where all available data regarding disappeared children and their relatives are collected and analyzed. It also found that: The children victimized by this policy have a fundamental right to their identity as persons and to know that identity. They also have the right to recover the memory of their natural parents, and to know that those parents never abandoned them. They have the right to be in contact with their natural family so that they can nurture and provide continuity to that memory of affection. The Commission believes that judges must have discretion to determine an appropriate custody arrangement, and where applicable, to regularize adoptions if the best familial environment for the healthy growth of the child is, in fact, the adoptive home. Even in these cases, however, judges must respect the exercise of the natural relatives to visitation rights and contacts with the child. In cases where the abduction was committed by a person who participated in the forced disappearance of the true parents, or in their torture or execution,

320 321

322

See supra 1.4. Report by Mr. Nowak, supra note 2, para. 92. See also F. Andreu Guzmán, “The Draft International Convention on the Protection of All Persons from Forced Disappearance”, supra note 8, pp. 79–80. Annual Report of the OAS 1987–1988, OEA/Ser.L/V/II.74, Chapter V, Study about the Situation of Minor Children of Disappeared Persons who Were Separated from their Parents and Who are Claimed by Members of their Legitimate Families, 16 September 1988.

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or who became an accomplice to such atrocities, the Commission believes that the child’s mental and physical health demands his immediate separation from that family group.323

The analysis was concluded with recommendations to the governments of the States Parties to the OAS in order to prevent and suppress enforced disappearances of children. These measures should be taken into account whenever dealing with the issue: a) An increase in the penalties for the crimes of suppression and misrepresentation of civil status and abduction of minors, as well as the creation of a more serious form of the crime when it is committed under the protection of, or taking advantage of, the forced disappearance of the true parents; b) The review of procedural standards in each of the member states, in order to facilitate the introduction of scientific evidence to clarify these cases, to speed up processing of actions to establish familial relationships, and to allow magistrates to grant injunctive relief to prevent the flight of persons, the hiding of children or the destruction of evidence; and c) The review, and where necessary, the amendment, of substantive and procedural norms regarding adoption, in order to conform them to contemporary realities, thereby contributing to their increased observance in all countries.324

Deeply influenced by the Report of the Interamerican Commission on Human Rights, Article 20 of the 1992 Declaration provides that: 1. States shall prevent and suppress the abduction of children of parents subjected to enforced disappearances and of children born during their mother’s enforced disappearance, and shall devote their efforts to the search for and identification of such children and to the restitution of the children to their families of origin. 2. Considering the need to protect the best interests of children referred to in the preceding paragraph, there shall be an opportunity, in States which recognize a system of adoption, for a review of the adoption of such children and, in particular, for annulment of any adoption which originated in enforced disappearance. Such adoption should, however, continue to be in force if consent is given, at the time of review, by the child’s closest relatives. 3. The abduction of children of parents subjected to enforced disappearance or of children born during their mother’s enforced disappearance, and the act of altering or suppressing documents attesting to their true identity, shall constitute an extremely serious offence, which shall be punished as such. 4. For these purposes, States shall, where appropriate, conclude bilateral and multilateral agreements.

323 324

Ibid., para. 5, “Conclusions and recommendations”. Ibid.


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The 1994 Interamerican Convention deals with the issue in a rather limited way, providing that: The State Parties shall give each other mutual assistance in the search for, identification, location and return of minors who have been removed to another State or detained therein as a consequence of the forced disappearance of their parents or guardians (Art. XII).

Surprisingly, this is the only mention of the issue of the disappearance of children in the entire instrument, despite the fact that the General Assembly of the OAS and the Interamerican Commission of Human Rights had made specific mention of the phenomenon respectively in their annual resolutions of 1987 and 1988 and in the Annual Report of 1988. While mutual assistance among States is undoubtedly required in cases of a transnational nature, enforced disappearances of children also occur at the domestic level alone. It would be necessary to require all States Parties to take the appropriate measures to prevent and punish such offences under their domestic criminal law, to sanction the falsification, concealment or destruction of documents attesting the true identity of children, to adopt all measures to search for and identify such children and to return them to their families of origin in the respect of the best interest of the children. At the judicial level, a relevant reference to the phenomenon of enforced disappearance of children might be found within the case law of the Human Rights Committee in 1995 in the Mónaco v. Argentina case.325 The Interamerican Court of Human Rights adopted provisional measures in 1993 and 1994 in a case concerning two Argentine children of a disappeared couple.326 It determined that the psychological situation of the children of disappeared parents who have been abducted and illegally adopted amounts to a form of inhuman and degrading treatment. In the two judgments delivered in 2004 and 2005 in the case Molina Theissen v. Guatemala and Hermanas Serrano Cruz v. El Salvador 327 the Court ordered to the respondent States measures of particular interest, including the creation of a genetic database as an effective means of prevention and suppression of enforced disappearances of children. The 1998 Draft Convention provided that: 325 326

327

HRC, Case Mónaco, supra note 296. IACHR, Case Reggiardo Tolosa v. Argentina (Provisional Measures), Resolutions of 19 November 1993 and 19 January 1994, supra 2.3.D. IACHR, Case Molina Theissen, supra note 283; Case Hermanas Serrano Cruz, supra note 149.

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Without prejudice to Articles 2 and 5 of this Convention, States Parties shall prevent and punish the abduction of children whose parents are victims of forced disappearance and of children born during their mother’s forced disappearance, and shall search for and identify such children. As a general rule, the child will be returned to his or her family of origin. Here the best interests of the child must be taken into account and the views of the child shall be given due weight in accordance with the age and maturity of the child. States Parties shall give each other assistance in the search for, identification, location and return of minors who have been removed to another State or held therein. For these purposes, States shall, as needed, conclude bilateral or multilateral agreements. States Parties whose laws provide for a system of adoption shall establish through their national law the possibility of reviewing adoptions, and in particular the possibility of annulment of any adoption which has arisen from a forced disappearance. Such adoption may, however, continue in force if consent is given, at the time of the review, by the child’s closest relatives. In any event, the best interests of the child should prevail and the views of the child should be given due weight in accordance with the age and maturity of the child. States Parties shall impose penalties in their criminal law on the abduction of children whose parents are victims of forced disappearance or of children born during their mother’s forced disappearance, and on the falsification or suppression of documents attesting to the child’s true identity. The penalties shall take into account the extreme seriousness of these offences (Art. 18).

The need to include in a future instrument on enforced disappearance a specific and sufficiently detailed provision on the issue was stressed by the 2005 Report the United Nations Working Group on Enforced or Involuntary Disappearances: The Working Group is still particularly concerned about reports it has received of the disappearance of children and, in a few cases, of physically and mentally challenged persons. The Working Group recalls the obligation of States to protect all groups in situations of vulnerability.328 The Working Group notes with great concern that in a number of cases children have reportedly disappeared. Although all disappearances are serious crimes, the disappearance of a child is particularly heinous. The Working Group calls on all Governments to make every effort to prevent the disappearance of children.329

328 329

E/CN.4/2006/56, supra note 88, para. 20. Ibid., para. 598. Resolution 2004/40, supra note 181, para. 3.d): the Commission on Human Rights invited the UNGWEID to continue to pay particular attention to cases of children subjected to enforced disappearance and children of disappeared persons and


385

These considerations show that child disappearance is not a phenomenon of the past or limited to a specific area of the world. As it has been correctly pointed out, Specific instruments, such as the Convention on the Civil Aspects of International Child Abduction, only allow for a very partial response to the human rights aspects of these practices. [. . .] In view of the extreme seriousness of these problems, one must speak of a gap in the present legal system which should be addressed in a universal and legally binding instrument.330

During the negotiations for the 2007 Convention one delegation, referring to the case of adoption of disappeared children, pointed out that: The crime had three components: the failure to restore the child to its original family, the manufacture of a false identity and the deprivation of the original family of its rights over the child.331

The 2007 Convention provides that: 1. Each State Party shall take the necessary measures to prevent and punish under its criminal law: a) The wrongful removal of children who are subjected to enforced disappearance, children whose father, mother or legal guardian is subjected to enforced disappearance or children born during the captivity of a mother subjected to enforced disappearance; b) The falsification, concealment or destruction of documents attesting to the true identity of the children referred to in subparagraph a). 2. Each State Party shall take the necessary measures to search for and identify the children referred to in paragraph 1 a) and to return them to their families of origin, in accordance with relevant legal procedures and international agreements. 3. State Parties shall assist one another in searching for, identifying and locating the children referred to in paragraph 1 a). 4. Given the need to protect the best interests of the children referred to in paragraph 1 a), and their right to preserve or to have re-established, their identity, including their nationality, name and family relations as recognized by law, States Parties which recognize a system of adoption or other form of placement of children to review the adoption or placement of children

330

331

to cooperate closely with governments in searching for and identifying these children. Report by Mr. Nowak, supra note 2, paras. 92 and 94. On the same issue see also F. Andreu Guzmán, “The Draft International Convention on the Protection of All Persons from Forced Disappearance”, supra note 8, pp. 79–80. E/CN.4/2004/59, supra note 31, para. 139.

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shall have legal procedures in place to review the adoption or placement procedure, and, where appropriate, to annul any adoption or placement of children that stemmed from enforced disappearance. 5. In all cases, and in particular in all matters relating to this Article, the best interests of the child shall be a primary consideration, and a child who is capable of forming his or her own views shall have the right to express those views freely, the views of the child being given due weight in accordance with the age and maturity of the child (Art. 25).

This provision properly addresses different types of disappearance of children, be they abducted autonomously or together with their parents and whether they are illegally adopted or not. On the crucial issue of the adoption of “disappeared” children, at the moment of the adoption of the 2007 Convention by the Third Committee of the General Assembly, the United Kingdom declared that it was understood that: The Article did not entail an obligation to provide a legal procedure, which would lead to an automatic review of the adoption. We also understand that the Article does not require the automatic annulment of an adoption which stems from an enforced disappearance. We interpret the Article to require State Parties to have a procedure or procedures providing a possibility to apply for a review of an adoption covered by this Article. Whether a review or annulment is in fact ordered will be an issue to be determined, according to the applicable legal procedures in the State concerned.332

While the remarks by the United Kingdom seem basically to reflect the spirit of Article 25.4, it may be added that also this provision has to be interpreted in the light of paragraph 5, which gives a primary consideration to the best interests of the child. On the same issue, the representative of the United States of America stressed that: Article 25 on children must be interpreted consistent with adoption laws and other relevant domestic laws and with international obligations of the State regarding children.333

332 333

GA/SHC/3872, supra note 7. A/HRC/1/G/1, supra note 7.


4.15

387

The Monitoring Body

The efficacy of any human rights instrument largely depends on the mandate of the body charged with monitoring its implementation by States Parties.334 The draft Convention elaborated by the Paris Bar Association in 1981 already foresaw two bodies of control – a commission and committee – entrusted respectively with examining the reports of the States Parties and processing individual complaints of enforced disappearance. The draft prepared by FEDEFAM did not foresee the creation of any bodies of control. It envisaged the establishment of an international criminal court to fulfil the specific task of suppression of the crime of forced disappearance. Under the 1992 Declaration, the United Nations Working Group on Enforced or Involuntary Disappearances is also entrusted with the task “to make sure that States respect their obligations under the Declaration on the Protection of All Persons from Enforced Disappearances”.335 To this aim, the Working Group elaborates “general observations” on the provisions of the Declaration, clarifying their meaning and the different obligations of the States. The original draft project (1988) of the 1994 Interamerican Convention envisaged the possibilities to involve the Interamerican Commission and the Interamerican Court of Human Rights, in cases where governments failed to collaborate, and to convene a meeting of consultation of ministers of Foreign Affairs, if a State was affected by a deliberate and systematic practice of forced disappearances. But the final text of the Convention only provides that: For the purposes of this Convention, the processing of petitions or communications presented to the Interamerican Commission on Human Rights alleging the forced disappearance of persons shall be subject to the procedures established in the American Convention on Human Rights and to the Statute and Regulations of the Interamerican Commission on Human Rights and to the Statute and Rules of Procedure of the Interamerican Court of Human Rights, including the provisions on precautionary measures (Art. XIII).

334

335

W. Tayler, “Background to the Elaboration of the Draft International Convention on the Protection of All Persons from Enforced Disappearance”, supra note 8, pp. 71–72; and F. Andreu Guzmán, “The Draft International Convention on the Protection of All Persons from Forced Disappearance”, supra note 8, pp. 97–103. E/CN.4/1999/62, supra note 245, para. 2.

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Without prejudice to the provisions of the preceding Article, when the Interamerican Commission on Human Rights receives a petition or communication regarding an alleged forced disappearance, its Executive Secretariat shall urgently and confidentially address the respective government, and shall request that government to provide as soon as possible information as to the whereabouts of the allegedly disappeared person together with any other information it considers pertinent, and such request shall be without prejudice as to the admissibility of the petition (Art. XIV).

Several judgments of the Interamerican Court of Human Rights on cases of enforced disappearance that took place in States Parties to the 1994 Interamerican Convention refer to violations of provisions of this instrument.336 In view of the drafting of a new legally binding instrument against enforced disappearances several options were considered. The United Nations Working Group on Enforced or Involuntary Disappearances expressed the opinion that: A monitoring body would be essential in order to supervise the compliance of State Parties. However, in order to avoid a further proliferation of treaty monitoring bodies, the Working Group suggests that this task should either be entrusted to one of the existing treaty monitoring bodies, for example by adopting a further Optional Protocol to the International Covenant on Civil and Political Rights, or to the Working Group on Enforced or Involuntary Disappearances. In the latter case, the Working Group would be prepared, in analogy to the double role of the Interamerican Commission on Human Rights, to examine the possibility of continuing to function as a thematic mechanism of the United Nations Commission on Human Rights with respect to all countries of the world where cases of disappearances are alleged to occur and, in addition, to function as a treaty monitoring body with respect to States Parties to the future Convention on disappearances.337

Articles 25 to 33 of the 1998 Draft Convention addressed the issue of a monitoring body. They provided for the establishment of a Committee against Forced Disappearance consisting of 10 experts.338 This Committee was intended to:

336 337 338

See supra 2.3; in particular, IACHR, Case Trujillo Oroza, supra note 98. E/CN.4/1997/34, supra note 190, para. 32. Interestingly, Article 25 of the 1998 Draft Convention provided that: “membership of the Committee is incompatible with any post or function subject to the hierarchical structure of the executive authority of a State Party”. This requirement was not retained in the 2007 Convention. Article 25, paras. 2–7, of the 1998 Draft Convention established a number of criteria for election of the members of the Committee and Article 26 provided for criteria to be followed in establishing the rules of procedure of the Committee. Similar provisions are lacking in the 2007 Convention.


– –

– – –

389

receive reports by the States Parties on the measures undertaken to give effect to their obligations under the Convention;339 invite States Parties to cooperate in the examination of the information on the existence of a widespread and systematic practice of disappearances in a given country and, in the cases in which the Committee established that the information was reliable, designate one or more of its members to make an inquiry (that could include a visit to the country concerned) and to report to it urgently; receive interstate and individual complaints about cases of enforced disappearance; undertake any effective procedure to seek and find people who have disappeared, either on its own initiative or at the request of a State Party, an individual, a group of individuals or a non-governmental organization; submit an Annual Report on its activities to the States Parties and to the General Assembly of the United Nations.

A complete overview of the various possibilities, besides the establishment of a new monitoring body, was provided in the report by Mr. Manfred Nowak to the Commission on Human Rights: [. . .] the adoption of a specialized human rights treaty would contribute to a further proliferation of human rights treaties and treaty monitoring bodies. Such proliferation of human rights treaties and treaty monitoring bodies and the related costs might be avoided either by entrusting the monitoring function to the Working Group on Enforced or Involuntary Disappearances or to any of the existing treaty monitoring bodies. The first option, which some members of the Working Group might favour, has the disadvantage of mixing special procedures of the Commission with treaty monitoring. For the Working Group, which has always stressed the humanitarian nature of searching for disappeared persons, treaty monitoring by means of, for instance, deciding on individual complaints, might interfere with its major and primary humanitarian tasks. Of all the existing treaty monitoring bodies, only the Committee against Torture and the Human Rights Committee seem to carry out functions similar to those expected from a future “committee on disappearance”. [. . .] In addition, many disappeared persons are subjected to torture, and the Human Rights Committee considers every prolonged incommunicado detention as inhuman treatment. Consequently, the Committee against Torture might be considered as the treaty monitoring body with the most relevant experience in combating enforced disappearance. Since the Committee, under Article 20 of the Convention against Torture, is already entrusted with the unction of carrying out confidential inquiry proceedings, including possible

339

Article 27.1 of the 1998 Draft Convention specified that: “In connection with the submission of the first report of each State Party concerned, the Committee may make a visit to the territory under the control of that State Party”.

390


on-site visits, this procedure might be also used for investigating cases of enforced disappearance. On the other hand, enforced disappearance is a much broader concept, which involves human rights violations that at present are not covered by the mandate and expertise of the Committee against Torture. In addition, it might be argued that a Committee of only 10 experts, which might in the near future also be responsible for supervising or even carrying out preventive visits to places of detention in accordance with the draft optional protocol to the Convention against Torture now under consideration by the Commission, might not be in a position to undertake major additional tasks, such as monitoring enforced disappearances. [. . .] Consequently, the Human Rights Committee already has the required expertise relating to the various aspects of enforced disappearance, which is underlined by its rich case law on this topic. In addition, this 18-member expert body has a particularly high reputation and disposes of sufficient time and resources to deal with an additional monitoring task. On the other hand, the capacities of the Human Rights Committee to take up an additional monitoring task will depend on the precise functions entrusted to the Committee under a future optional protocol on enforced disappearance. The additional monitoring of this human rights violation in the context of the State reporting and individual and inter-State communication procedures will not pose an excessive additional burden as these functions have partly already been implemented by the Human Rights Committee with respect to disappearances. A future binding instrument on enforced disappearance should, however, go beyond these traditional monitoring procedures and also include, for instance, special mechanisms for the tracing of disappeared persons, an inquiry procedure with visits to the territory of States Parties and possibly also preventive visits to, or at least monitoring of, places of detention. While all three options seem to have certain advantages and disadvantages, the independent expert concludes that, under the assumption that governments wish to avoid a further proliferation of treaty monitoring bodies, the Human Rights Committee might be in the best position to undertake the additional task of monitoring States’ compliance with their obligations.340

While Mr. Nowak seems to prefer the option of entrusting an already existing monitoring body (the Human Rights Committee) with the functions provided for by the Convention, several delegations taking part in the negotiations as well as other experts on the issue pointed out the need for the creation of a new autonomous mechanism. They paid attention to the saturation of the working capacity of the already existing monitoring bodies as well as to the procedural obstacles in entrusting the latter with new functions.341

340 341

Report by Mr. Nowak, supra note 2, paras. 99–102. See, in particular, F. Andreu Guzmán, “The Draft International Convention on the


391

In 2005 Mr. Pourgourides preferred the option of the creation of a new monitoring body, pointing out that: As regards the need for a rapid intervention mechanism, experience has shown that the time factor is crucial. When perpetrators of enforced disappearances are faced with rapid reactions from the family, local community, or central authorities, sometimes prompted to intervene by international bodies, and ideally as long as the “chain of known custody” is not yet interrupted, lives can be saved. Some disappeared persons reappear after the perpetrators have realized, or have been made to understand that the price – in terms of risk of prosecution or loss of respectability – to be paid for definitely “disappearing” the victim is too high. But the existing mechanisms are too weak, and in particular, too slow, in order to achieve success. A new international instrument on enforced disappearances should therefore foresee such a mechanism, perhaps along the lines of that foreseen in the first draft of the Interamerican Convention.342

These remarks are mirrored in Resolution 1463 (2005) of the Parliamentary Assembly of the Council of Europe: The instrument should finally provide for a strong international mechanism to monitor the respect of the States’ obligations outlined in items 10.1 to 10.5 above which should also foresee a mechanism for urgent interventions in some cases.343 [. . .] States members of the Council of Europe are encouraged to make further improvements to this text, in particular to: Streamline the procedure for on-site visits by the future Committee on Enforced Disappearances in Article 32 of the draft Convention.344 In case the draft instrument is adopted unchanged, the member States of the Council of Europe are urged to sign and ratify it without delay, and to make declarations aimed at maximising the protecting effect of the instrument, in particular to: Waive the need for prior agreement to an on-site visit of the Committee on Enforced Disappearance foreseen in Article 32;

342 343 344

Protection of All Persons from Forced Disappearance”, supra note 8, pp. 101–103. See also Final Report on Enhancing the Long-term Effectiveness of the United Nations Human Rights Treaty System, by expert P. Alston, E/CN.4/1997/74, 27 March 1997. Report by Mr. Pourgourides, supra note 10, para. 61. Resolution 1463 (2005), supra note 38, para. 10.6. Ibid., para. 12.1. However, during the negotiations of the 2007 Convention a number of States members of the Council of Europe have supported the use of already existing treaty monitoring bodies like the HRC.

392


Recognize the competence of the Committee to receive and consider communications on behalf of individuals claiming to be victims of a violation of the Convention, as foreseen in Article 31.345

During the whole negotiation process of the 2007 Convention, the juridical nature of the future instrument (whether it would be a new convention or an additional protocol to the International Covenant on Civil and Political Rights) was one of the most delicate issues to be addressed. The same can be said about the question on whether to create a new monitoring body or to entrust an already existing one (namely the United Nations Human Rights Committee) with the tasks established by the new instrument. The debate was also related to the overall ongoing process of reforming the human rights monitoring system of the United Nations envisaged by the High Commissioner for Human Rights in 2005 and supported by the Secretary General of the United Nations. The proposed use of the Human Rights Committee raised some technical and bureaucratic concerns, as this human rights monitoring body is currently going through a severe state of impasse.346 In over twenty years, from 1977 to 1997, the Committee had issued views in 260 cases, and its capacity to process communications was estimated at around thirty communications per year. If every State Party to the Optional Protocol to the International Covenant on Civil and Political Rights were to generate only one communication per year, the backlog would soon become unbearable. The option of entrusting an already overloaded treaty body with new functions (some of which of neither a judicial nor quasi-judicial nature) would have determined its collapse and at the same time the impossibility of monitoring the new instrument on enforced disappearances. During the negotiations for the 2007 Convention it was also proposed to enlarge the Human Rights Committee and to raise the number of its members from eighteen to twenty-three. However, any modification of the structure and composition of the Committee would have required a corresponding amendment to the Covenant and its First Optional Protocol according to the complex procedure provided for in Article 51 of the Covenant and Article 11 of the Protocol. This would have entailed time, financial resources and political and diplomatic efforts, thus basically evading

345 346

Ibid., paras. 13, 13.1 and 13.2. See, inter alia, P. Alston, J. Crawford, The Future of UN Human Rights Treaty Monitoring, Cambridge, 2000.


393

the urgency of the creation of an effective monitoring body for the new instrument against enforced disappearance. After long debates, the final choice was the creation of a new, autonomous monitoring body, the Committee on Enforced Disappearances. It will consist of ten experts of high moral character and recognized competence in the field of human rights, who shall serve in their personal capacity and be independent and impartial.347 The members of the new Committee will be elected by the States Parties according to equitable geographical distribution. Consideration shall be given to the usefulness of participation in the work of the Committee of people having relevant legal experience and to balanced gender representation. The members of the Committee shall serve for a four-year term and shall be re-eligible once. In order to address the concerns expressed by a number of delegations on the proliferation of new monitoring bodies and in view of a possible general reform of the whole United Nations human rights monitoring system, an innovating provision was included in the 2007 Convention: A conference of States Parties will take place at the earliest four years and at the latest six years following the entry into force of this Convention to evaluate the functioning of the Committee and to decide, in accordance with the procedure described in Article 44, paragraph 2, whether it is appropriate to transfer to another body – without excluding any possibility – the monitoring of this Convention, in accordance with the functions defined in Articles 28 to 36 (Art. 27).348

It is the first time that a human rights instrument creates a Committee establishing that within a specified term the Conference of the States Parties will evaluate whether it is appropriate to transfer its functions to another body. However, this clause should not be interpreted as creating a “provisional” monitoring body. The aim, as clearly reflected in the wording of Article 27, is to establish a permanent monitoring body which will cease to exist only if the State Parties of the Convention consider that it has not discharged its mandate with the required effectiveness (and in this case they will decide

347

348

“Several delegations proposed the inclusion of a clause whereby ‘the function of Committee member is incompatible with any post or function within the hierarchical structure of the executive branch of a State Party’” (E/CN.4/2006/57, supra note 49, para. 76). Under Article 44.2, “any amendment adopted by a majority of two thirds of the States Parties present and voting at the conference shall be submitted by the Secretary General to all the States Parties for acceptance”.

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which other body the task of monitoring the Convention should be transferred to) or if a new global human rights monitoring system is established in the meanwhile. In every case, there will always be an organ in charge of the monitoring functions required by the 2007 Convention. When the text of the 2007 Convention was approved by the Third Committee of the General Assembly of the United Nations, Canada reiterated that it would have preferred the monitoring to have been allocated to the Human Rights Committee. The same was stated by India.349 The United States stressed that: It continues to support the use of an existing treaty body to perform monitoring functions, that is, the Human Rights Committee, which currently deals with forced disappearances, in view of the Committee’s expertise; in the interest of consistency of jurisprudence, efficiency, avoidance of redundancy, and cost; and in light of the ongoing proposal for treaty body reform. We would hope that, per Article 27 of the draft Convention, States Parties adopt in the future use of the Human Rights Committee as the monitoring body.350

To further ensure the coherence of the work carried out by the new Committee and its strict cooperation with already existing United Nations bodies dealing with the issue of enforced disappearances, the Convention provides that: 1. In the framework of the competencies granted by this Convention, the Committee shall co-operate with all relevant organs, offices and specialized agencies and funds of the United Nations, with the treaty bodies instituted by international instruments, with the special procedures of the United Nations, and with the regional intergovernmental organizations or bodies concerned, as well as with all relevant State institutions, agencies or offices working toward the protection of all persons against enforced disappearances. 2. As it discharges its mandate, the Committee shall consult other treaty bodies instituted by relevant international human rights instruments, in particular the Human Rights Committee instituted by the International Covenant on Civil and Political Rights, with a view to ensuring the consistency of their respective observations and recommendations. (Art. 28)351

349 350 351

GA/SHC/3872, supra note 7. A/HRC/1/G/1, supra note 7. During the drafting of the 2007 Convention a number of States declared that, even if no explicit mention is made to the UNGWEID, it shall be considered as one of the “relevant organs” the new Committee will have to strictly cooperate with.


395

Under Articles 29 to 34 of the 2007 Convention the functions of the monitoring body are defined in a very detailed manner. They provide for a set of functions different in nature and scope. Besides traditional quasi-judicial competences such as receiving and considering individual or interstate communications (Arts. 31 and 32)352 and examining reports (Art. 29), an emergency procedure to seek and find disappeared persons (Art. 30) and field activities in the form of visits to the State concerned (Art. 33)353 are also envisaged. Furthermore, the possibility to urgently bring the matter of the occurrence of enforced disappearances on a systematic scale to the attention of the General Assembly of the United Nations through the Secretary General is provided for. This is also to be read as an opportunity to further refer (through the appropriate channels set forth in Article 13 of the 1998 Rome Statute) the issue to the International Criminal Court so that it may exercise its jurisdiction for the crime against humanity of enforced disappearance.354 The establishment of an “emergency procedure” by a legally binding human rights instrument is a substantive innovation, as no other treaties provide for such a mechanism. In the case of enforced disappearances, this is a key provision in order to strengthen prevention of the offence. Some delegations participating in the negotiations insisted for the inclusion in paragraph 2(c) of Article 30 of the condition that domestic remedies had to have been exhausted. They requested that the emergency mechanism should only be optional in the absence of this condition. Other delegations replied that it was contradictory to submit a mechanism that by definition applied in urgent circumstances to a procedural condition that would require the a long period of time to elapse.355 Following lengthy discussions, the majority 352

353

354 355

It was emphasized that Article 31.1 “allowed for non-governmental organizations to bring cases before the Committee” (E/CN.4/2006/57, supra note 49, para. 53). The Islamic Republic of Iran stated that it did not accept the competence of the Committee to receive and consider individual communications (ibid., para. 59). During the negotiation it was proposed that the “monitoring body could make the findings public of visits if it felt that no appropriate measures had been taken on its recommendations” (E/CN.4/2004/59, supra note 31, para. 156). One delegation wanted the mechanism of visits to be optional and another said that the procedure was too intrusive (ibid., para. 157). E/CN.4/2005/66, supra note 51, para. 138. As observed by many delegations, “the emergency warning procedure was different from the quasi-legal procedure for the examination of individual communications inasmuch as its objective was to seek, find and afford immediate protection to the individual concerned, not to determine whether the State might be responsible for a violation of the

396


of the delegations agreed that, as paragraph 2(c) provided for notification to the competent national authorities, the possibility remained for a State to respond to a complaint under domestic law; but this possibility should not prevent the establishment of an “emergency procedure” at the international level. However, Iran said that it would oppose the provision and proposed the inclusion of an additional admissibility criterion requiring the urgent action request to be corroborated by the facts. The other delegations did not accept the proposal, considering that subparagraph 2(a) already contained the necessary safeguards. Egypt stated that it would have preferred the procedure to be optional, as it was difficult to determine what was urgent and what was not.356 Article 35 of the 2007 Convention provides that the Committee on Enforced Disappearances shall have competence solely with regard to enforced disappearances which commenced after its entry into force. Argentina, Chile and Italy357 emphasized, however, that as enforced disappearance constituted a continuous crime, they intended to make an interpretative declaration, when ratifying the instrument, whereby certain rights and obligations, such as the right to truth, justice and reparation and those relating to the disappearance of children, would be extended to enforced disappearances which had commenced before the instrument had entered into force but had not yet been clarified.358

356 357

358

provisions of the instrument. The procedure should not, therefore, be contingent upon the exhaustion of domestic remedies or the rules of litispendence” (E/CN.4/2004/59, supra note 31, para. 153). E/CN.4/2006/57, supra note 49, paras. 41 and 46. The declaration of Italy is in accordance with the recommendation formulated by the Parliamentary Assembly of the Council of Europe that “the member States of the Council of Europe are encouraged to make further improvements to the text, in particular to [. . .] extend the application of the future Convention over time, beyond that foreseen by the current Article 35, to include cases in which the disappearance occurred before the entry into force of the Convention and in which the whereabouts of the disappeared person have not been clarified until after its entry into force”: Resolution 1463 (2005), supra note 38, para. 12.2. It also recommended to “interpret Article 35 in such a way as to allow the Convention to cover also cases in which the disappearance occurred before entry into force of the Convention and the whereabouts of the disappeared person have not been clarified until after its entry into force” (para. 13.3). E/CN.4/2006/57, supra note 49, para. 66.

Conclusions Hitler understood that vanishing without trace may be even worse than dying. Keitel followed Hitler’s path and signed the 1941 Nacht und Nebel decree.1 Sadly, in the subsequent decades too many others have followed the same path worldwide, with or without knowledge of the Nacht und Nebel precedent. Despite the variations, the logic does not change. Those who want to exercise power and keep it at any cost can obtain strength and profit from making people, including children, disappear. Secret and slavish executors are easily available to perform the dirty job. Today, although the scourge of enforced disappearance has been defeated in some countries, it still exists in several others worldwide, even where it is hard to imagine it being possible. Also the logic of those who fight against enforced disappearance worldwide does not change. They believe that the core of a State’s dignity is that fundamental human rights are not violated. They also believe that the first element of national security is that people do not disappear. No exceptions are allowed. The International Convention for the Protection of All Persons from Enforced Disappearance, opened to signature in Paris in 2007, is likely to become a useful tool in the struggle against this scourge, both for its contents and for the procedural mechanism set forth. The merits of France and of the other States, non governmental organizations and experts that promoted the drafting of a specific treaty need to be acknowledged. However, before celebrating the success of the instrument, some conditions must be met. As any treaty, the Convention should enter into force. It should receive universal participation, including from countries located in areas, such as Asia, where there are no regional mechanisms for the protection of human rights. States Parties should also recognize the competence of the Committee on Enforced Disappearances, established under the Convention, to receive individual complaints. The provisions of the Convention should be interpreted in the light of a progressive spirit.

1

Supra 1.2.

398

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The fact remains that international legal instruments cannot change all of a sudden a reality that is mainly due to the degraded level of moral vileness of those who resort to enforced disappearance. The hope that, sooner or later, also a Convention and a new international Committee may contribute to the struggle and the victory against such a grave violation of human rights is based on some instances. In particular, one may recall the advanced case law of the Interamerican Court of Human Rights and its sensitivity towards the full rehabilitation of the memory and dignity of those who have disappeared and their relatives. A subsequent step to undertake in the future should be a change in the very restrictive (and unwarranted) attitude taken by the European Court of Human Rights at the moment of granting moral satisfaction to the victims of enforced disappearance and their relatives. A further step would be the trial and sanctioning of people accused of the crime against humanity of enforced disappearance before the International Criminal Court. Justice, truth and integral reparation are needed to eradicate forever the practice of enforced disappearance. In this context, the 2007 Convention could provide a decisive support to the struggle. For over twenty-five years the relatives of thousands of victims worldwide have been calling for the adoption of this international instrument. They have actively participated in the negotiations, testifying their human tragedy as well as their commendable courage and firm intention not to forget and to prevent any new act of disappearance from taking place anywhere. The 2007 Convention recognizes the new human right of any person not to be subjected to enforced disappearance. It also recognizes and guarantees the human right to know the truth. The relatives of the victims of disappearance, as well as society as a whole, call for the disclosure of the fate and whereabouts of those who have disappeared. It is a truth that must be known, circulated and not forgotten. Only the truth can avoid impunity and the repetition of the scourge. Only the full knowledge and remembrance of the truth together with justice can prevent other people from following the path taken by Hitler, Keitel and too many others.

Post Scriptum While this book was in printing some relevant documents were released by the United Nations Working Group on Enforced or Involuntary Disappearances (UNGWEID). The UNGWEID published its Annual Report for the year 2006 (A/ HRC/4/41 of 25 January 2007). In this period it transmitted 335 new cases to 16 governments (para. 35). The number of cases that have not been clarified or discontinued stands now at 41,232. The UNGWEID remains concerned that, of the 79 States with outstanding cases, some governments (Burundi, Guinea, Israel, Mozambique, Namibia, Seychelles, as well as the Palestinian Authority) have never replied to its requests for information or reminders (para. 495). Inter alia, the UNGWEID reiterates the concerns that the enactment of amnesty laws and their implementation leads to impunity and may perpetuate human rights abuses (paras. 25 and 500); that disappearances or acts of intimidation have affected human rights defenders, witnesses, legal counsels and relatives of disappeared persons, particularly in Algeria, Argentina, Colombia, Guatemala, the Russian Federation and Thailand (para. 26); that the accused perpetrators are tried by special or military courts (para. 499); that in some regions non governmental organizations are not present, organized or well-funded enough to be able to work effectively (para. 28), that accurate information on persons deprived of liberty is not promptly available to their families and counsels (para. 498); that, outside Latin America, very few States have created a specific criminal offence (para. 48). The UNGWEID strongly encourages the establishment of investigating bodies, truth commissions and war crimes tribunals, as concrete actions that may lead to the clarification of cases and to the implementation of compensation policies for victims (para. 502). The UNGWEID also published its report on the mission to Guatemala (A/HRC/4/41/Add.1 of 20 February 2007), where it points out the “broad gap between the advanced legal framework and expressions of political will to bring to justice cases of disappearances, versus the low level of practical

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results” (paras. 50 and 93), as well as a preliminary note on its mission to El Salvador (A/HRC/4/41/Add.3 of 6 March 2007) and to Honduras (A/HRC/4/41/Add.2 of 6 March 2007). Forthcoming is the general comment by the UNGWEID on the definition of enforced disappearance (20 March 2007). The UNGWEID takes the position that “any act of enforced disappearance has the consequence of placing the persons subjected thereto outside the protection of the law” (para. 5). It will therefore admit cases “without requiring that the information whereby a case is reported by a source should demonstrate, or even presume, the intention of the perpetrator to place the victim outside the protection of the law” (para. 5). According to the UNGWEID, a detention followed by an extrajudicial execution is an enforced disappearance if, subsequent to the detention, or even after the execution was carried out, State officials refuse to disclose the fate or whereabouts of the person concerned or refuse to acknowledge the act having been perpetrated at all (para. 10).

Text of the Convention for the Protection of All Persons

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A/RES/61/177

United Nations

Distr.: General 12 January 2007

General Assembly Sixty-first session Agenda item 68

Resolution adopted by the General Assembly [on the report of the Third Committee (A/61/448 and Corr.2)]

61/177. International Convention for the Protection of All Persons from Enforced Disappearance The General Assembly, Taking note of Human Rights Council resolution 1/1 of 29 June 2006,1 by which the Council adopted the International Convention for the Protection of All Persons from Enforced Disappearance, 1. Acknowledges the adoption by the Human Rights Council of the International Convention for the Protection of All Persons from Enforced Disappearance; 2. Adopts and opens for signature, ratification and accession the International Convention for the Protection of All Persons from Enforced Disappearance, the text of which is annexed to the present resolution; 3. Recommends that the Convention be opened for signature at a signing ceremony in Paris. 82nd plenary meeting 20 December 2006

Annex International Convention for the Protection of All Persons from Enforced Disappearance Preamble The States Parties to this Convention, Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and fundamental freedoms, 1

See Official Records of the General Assembly, Sixty-first Session, Supplement No. 53 (A/61/53), part one, chap. II, sect. A.

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Having regard to the Universal Declaration of Human Rights, Recalling the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the other relevant international instruments in the fields of human rights, humanitarian law and international criminal law, Also recalling the Declaration on the Protection of All Persons from Enforced Disappearance adopted by the General Assembly of the United Nations in its resolution 47/133 of 18 December 1992, Aware of the extreme seriousness of enforced disappearance, which constitutes a crime and, in certain circumstances defined in international law, a crime against humanity, Determined to prevent enforced disappearances and to combat impunity for the crime of enforced disappearance, Considering the right of any person not to be subjected to enforced disappearance, the right of victims to justice and to reparation, Affirming the right of any victim to know the truth about the circumstances of an enforced disappearance and the fate of the disappeared person, and the right to freedom to seek, receive and impart information to this end, Have agreed on the following articles: Part I Article 1 1. No one shall be subjected to enforced disappearance. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance. Article 2 For the purposes of this Convention, “enforced disappearance” is considered to be 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 the protection of the law. Article 3 Each 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. Article 4 Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law. Article 5 The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.


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Article 6 1. Each State Party shall take the necessary measures to hold criminally responsible at least: (a) Any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance; (b) A superior who: (i) Knew, or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control were committing or about to commit a crime of enforced disappearance; (ii) Exercised effective responsibility for and control over activities which were concerned with the crime of enforced disappearance; and (iii) Failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of an enforced disappearance or to submit the matter to the competent authorities for investigation and prosecution; (c) Subparagraph (b) above is without prejudice to the higher standards of responsibility applicable under relevant international law to a military commander or to a person effectively acting as a military commander. 2. No order or instruction from any public authority, civilian, military or other, may be invoked to justify an offence of enforced disappearance. Article 7 1. Each State Party shall make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness. 2. Each State Party may establish: (a) Mitigating circumstances, in particular for persons who, having been implicated in the commission of an enforced disappearance, effectively contribute to bringing the disappeared person forward alive or make it possible to clarify cases of enforced disappearance or to identify the perpetrators of an enforced disappearance; (b) Without prejudice to other criminal procedures, aggravating circumstances, in particular in the event of the death of the disappeared person or the commission of an enforced disappearance in respect of pregnant women, minors, persons with disabilities or other particularly vulnerable persons. Article 8 Without prejudice to article 5, 1. A State Party which applies a statute of limitations in respect of enforced disappearance shall take the necessary measures to ensure that the term of limitation for criminal proceedings: (a) Is of long duration and is proportionate to the extreme seriousness of this offence; (b) Commences from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature.

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2. Each State Party shall guarantee the right of victims of enforced disappearance to an effective remedy during the term of limitation. Article 9 1. Each State Party shall take the necessary measures to establish its competence to exercise jurisdiction over the offence of enforced disappearance: (a) When the offence is committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is one of its nationals; (c) When the disappeared person is one of its nationals and the State Party considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its competence to exercise jurisdiction over the offence of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to another State in accordance with its international obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized. 3. This Convention does not exclude any additional criminal jurisdiction exercised in accordance with national law. Article 10 1. Upon being satisfied, after an examination of the information available to it, that the circumstances so warrant, any State Party in whose territory a person suspected of having committed an offence of enforced disappearance is present shall take him or her into custody or take such other legal measures as are necessary to ensure his or her presence. The custody and other legal measures shall be as provided for in the law of that State Party but may be maintained only for such time as is necessary to ensure the person’s presence at criminal, surrender or extradition proceedings. 2. A State Party which has taken the measures referred to in paragraph 1 of this article shall immediately carry out a preliminary inquiry or investigations to establish the facts. It shall notify the States Parties referred to in article 9, paragraph 1, of the measures it has taken in pursuance of paragraph 1 of this article, including detention and the circumstances warranting detention, and of the findings of its preliminary inquiry or its investigations, indicating whether it intends to exercise its jurisdiction. 3. Any person in custody pursuant to paragraph 1 of this article may communicate immediately with the nearest appropriate representative of the State of which he or she is a national, or, if he or she is a stateless person, with the representative of the State where he or she usually resides. Article 11 1. The State Party in the territory under whose jurisdiction a person alleged to have committed an offence of enforced disappearance is found shall, if it does not extradite that person or surrender him or her to another State in accordance with its international obligations or surrender him or her to an international criminal tribunal whose jurisdiction it has recognized, submit the case to its competent authorities for the purpose of prosecution.


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2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State Party. In the cases referred to in article 9, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 9, paragraph 1. 3. Any person against whom proceedings are brought in connection with an offence of enforced disappearance shall be guaranteed fair treatment at all stages of the proceedings. Any person tried for an offence of enforced disappearance shall benefit from a fair trial before a competent, independent and impartial court or tribunal established by law. Article 12 1. Each State Party shall ensure that any individual who alleges that a person has been subjected to enforced disappearance has the right to report the facts to the competent authorities, which shall examine the allegation promptly and impartially and, where necessary, undertake without delay a thorough and impartial investigation. Appropriate steps shall be taken, where necessary, to ensure that the complainant, witnesses, relatives of the disappeared person and their defence counsel, as well as persons participating in the investigation, are protected against all ill-treatment or intimidation as a consequence of the complaint or any evidence given. 2. Where there are reasonable grounds for believing that a person has been subjected to enforced disappearance, the authorities referred to in paragraph 1 of this article shall undertake an investigation, even if there has been no formal complaint. 3. Each State Party shall ensure that the authorities referred to in paragraph 1 of this article: (a) Have the necessary powers and resources to conduct the investigation effectively, including access to the documentation and other information relevant to their investigation; (b) Have access, if necessary with the prior authorization of a judicial authority, which shall rule promptly on the matter, to any place of detention or any other place where there are reasonable grounds to believe that the disappeared person may be present. 4. Each State Party shall take the necessary measures to prevent and sanction acts that hinder the conduct of an investigation. It shall ensure in particular that persons suspected of having committed an offence of enforced disappearance are not in a position to influence the progress of an investigation by means of pressure or acts of intimidation or reprisal aimed at the complainant, witnesses, relatives of the disappeared person or their defence counsel, or at persons participating in the investigation. Article 13 1. For the purposes of extradition between States Parties, the offence of enforced disappearance shall not be regarded as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition based on such an offence may not be refused on these grounds alone. 2. The offence of enforced disappearance shall be deemed to be included as an extraditable offence in any extradition treaty existing between States Parties before the entry into force of this Convention.

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3. States Parties undertake to include the offence of enforced disappearance as an extraditable offence in any extradition treaty subsequently to be concluded between them. 4. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the necessary legal basis for extradition in respect of the offence of enforced disappearance. 5. States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offence of enforced disappearance as an extraditable offence between themselves. 6. Extradition shall, in all cases, be subject to the conditions provided for by the law of the requested State Party or by applicable extradition treaties, including, in particular, conditions relating to the minimum penalty requirement for extradition and the grounds upon which the requested State Party may refuse extradition or make it subject to certain conditions. 7. Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the requested State Party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person’s sex, race, religion, nationality, ethnic origin, political opinions or membership of a particular social group, or that compliance with the request would cause harm to that person for any one of these reasons. Article 14 1. States Parties shall afford one another the greatest measure of mutual legal assistance in connection with criminal proceedings brought in respect of an offence of enforced disappearance, including the supply of all evidence at their disposal that is necessary for the proceedings. 2. Such mutual legal assistance shall be subject to the conditions provided for by the domestic law of the requested State Party or by applicable treaties on mutual legal assistance, including, in particular, the conditions in relation to the grounds upon which the requested State Party may refuse to grant mutual legal assistance or may make it subject to conditions. Article 15 States Parties shall cooperate with each other and shall afford one another the greatest measure of mutual assistance with a view to assisting victims of enforced disappearance, and in searching for, locating and releasing disappeared persons and, in the event of death, in exhuming and identifying them and returning their remains. Article 16 1. No State Party shall expel, return (“refouler”), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.


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Article 17 1. No one shall be held in secret detention. 2. Without prejudice to other international obligations of the State Party with regard to the deprivation of liberty, each State Party shall, in its legislation: (a) Establish the conditions under which orders of deprivation of liberty may be given; (b) Indicate those authorities authorized to order the deprivation of liberty; (c) Guarantee that any person deprived of liberty shall be held solely in officially recognized and supervised places of deprivation of liberty; (d) Guarantee that any person deprived of liberty shall be authorized to communicate with and be visited by his or her family, counsel or any other person of his or her choice, subject only to the conditions established by law, or, if he or she is a foreigner, to communicate with his or her consular authorities, in accordance with applicable international law; (e) Guarantee access by the competent and legally authorized authorities and institutions to the places where persons are deprived of liberty, if necessary with prior authorization from a judicial authority; ( f ) Guarantee that any person deprived of liberty or, in the case of a suspected enforced disappearance, since the person deprived of liberty is not able to exercise this right, any persons with a legitimate interest, such as relatives of the person deprived of liberty, their representatives or their counsel, shall, in all circumstances, be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of the deprivation of liberty and order the person’s release if such deprivation of liberty is not lawful. 3. Each State Party shall assure the compilation and maintenance of one or more up-to-date official registers and/or records of persons deprived of liberty, which shall be made promptly available, upon request, to any judicial or other competent authority or institution authorized for that purpose by the law of the State Party concerned or any relevant international legal instrument to which the State concerned is a party. The information contained therein shall include, as a minimum: (a) The identity of the person deprived of liberty; (b) The date, time and place where the person was deprived of liberty and the identity of the authority that deprived the person of liberty; (c) The authority that ordered the deprivation of liberty and the grounds for the deprivation of liberty; (d) The authority responsible for supervising the deprivation of liberty; (e) The place of deprivation of liberty, the date and time of admission to the place of deprivation of liberty and the authority responsible for the place of deprivation of liberty; ( f ) Elements relating to the state of health of the person deprived of liberty; (g) In the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the remains; (h) The date and time of release or transfer to another place of detention, the destination and the authority responsible for the transfer.

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Article 18 1. Subject to articles 19 and 20, each State Party shall guarantee to any person with a legitimate interest in this information, such as relatives of the person deprived of liberty, their representatives or their counsel, access to at least the following information: (a) The authority that ordered the deprivation of liberty; (b) The date, time and place where the person was deprived of liberty and admitted to the place of deprivation of liberty; (c) The authority responsible for supervising the deprivation of liberty; (d) The whereabouts of the person deprived of liberty, including, in the event of a transfer to another place of deprivation of liberty, the destination and the authority responsible for the transfer; (e) The date, time and place of release; ( f ) Elements relating to the state of health of the person deprived of liberty; (g) In the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the remains. 2. Appropriate measures shall be taken, where necessary, to protect the persons referred to in paragraph 1 of this article, as well as persons participating in the investigation, from any ill-treatment, intimidation or sanction as a result of the search for information concerning a person deprived of liberty. Article 19 1. Personal information, including medical and genetic data, which is collected and/or transmitted within the framework of the search for a disappeared person shall not be used or made available for purposes other than the search for the disappeared person. This is without prejudice to the use of such information in criminal proceedings relating to an offence of enforced disappearance or the exercise of the right to obtain reparation. 2. The collection, processing, use and storage of personal information, including medical and genetic data, shall not infringe or have the effect of infringing the human rights, fundamental freedoms or human dignity of an individual. Article 20 1. Only where a person is under the protection of the law and the deprivation of liberty is subject to judicial control may the right to information referred to in article 18 be restricted, on an exceptional basis, where strictly necessary and where provided for by law, and if the transmission of the information would adversely affect the privacy or safety of the person, hinder a criminal investigation, or for other equivalent reasons in accordance with the law, and in conformity with applicable international law and with the objectives of this Convention. In no case shall there be restrictions on the right to information referred to in article 18 that could constitute conduct defined in article 2 or be in violation of article 17, paragraph 1. 2. Without prejudice to consideration of the lawfulness of the deprivation of a person’s liberty, States Parties shall guarantee to the persons referred to in article 18, paragraph 1, the right to a prompt and effective judicial remedy as a means of obtaining without delay the information referred to in article 18, paragraph 1. This right to a remedy may not be suspended or restricted in any circumstances.


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Article 21 Each State Party shall take the necessary measures to ensure that persons deprived of liberty are released in a manner permitting reliable verification that they have actually been released. Each State Party shall also take the necessary measures to assure the physical integrity of such persons and their ability to exercise fully their rights at the time of release, without prejudice to any obligations to which such persons may be subject under national law. Article 22 Without prejudice to article 6, each State Party shall take the necessary measures to prevent and impose sanctions for the following conduct: (a) Delaying or obstructing the remedies referred to in article 17, paragraph 2 ( f ), and article 20, paragraph 2; (b) Failure to record the deprivation of liberty of any person, or the recording of any information which the official responsible for the official register knew or should have known to be inaccurate; (c) Refusal to provide information on the deprivation of liberty of a person, or the provision of inaccurate information, even though the legal requirements for providing such information have been met. Article 23 1. Each State Party shall ensure that the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody or treatment of any person deprived of liberty includes the necessary education and information regarding the relevant provisions of this Convention, in order to: (a) Prevent the involvement of such officials in enforced disappearances; (b) Emphasize the importance of prevention and investigations in relation to enforced disappearances; (c) Ensure that the urgent need to resolve cases of enforced disappearance is recognized. 2. Each State Party shall ensure that orders or instructions prescribing, authorizing or encouraging enforced disappearance are prohibited. Each State Party shall guarantee that a person who refuses to obey such an order will not be punished. 3. Each State Party shall take the necessary measures to ensure that the persons referred to in paragraph 1 of this article who have reason to believe that an enforced disappearance has occurred or is planned report the matter to their superiors and, where necessary, to the appropriate authorities or bodies vested with powers of review or remedy. Article 24 1. For the purposes of this Convention, “victim” means the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance. 2. Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard.

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3. Each State Party shall take all appropriate measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains. 4. Each State Party shall ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation. 5. The right to obtain reparation referred to in paragraph 4 of this article covers material and moral damages and, where appropriate, other forms of reparation such as: (a) Restitution; (b) Rehabilitation; (c) Satisfaction, including restoration of dignity and reputation; (d) Guarantees of non-repetition. 6. Without prejudice to the obligation to continue the investigation until the fate of the disappeared person has been clarified, each State Party shall take the appropriate steps with regard to the legal situation of disappeared persons whose fate has not been clarified and that of their relatives, in fields such as social welfare, financial matters, family law and property rights. 7. Each State Party shall guarantee the right to form and participate freely in organizations and associations concerned with attempting to establish the circumstances of enforced disappearances and the fate of disappeared persons, and to assist victims of enforced disappearance. Article 25 1. Each State Party shall take the necessary measures to prevent and punish under its criminal law: (a) The wrongful removal of children who are subjected to enforced disappearance, children whose father, mother or legal guardian is subjected to enforced disappearance or children born during the captivity of a mother subjected to enforced disappearance; (b) The falsification, concealment or destruction of documents attesting to the true identity of the children referred to in subparagraph (a) above. 2. Each State Party shall take the necessary measures to search for and identify the children referred to in paragraph 1 (a) of this article and to return them to their families of origin, in accordance with legal procedures and applicable international agreements. 3. States Parties shall assist one another in searching for, identifying and locating the children referred to in paragraph 1 (a) of this article. 4. Given the need to protect the best interests of the children referred to in paragraph 1 (a) of this article and their right to preserve, or to have re-established, their identity, including their nationality, name and family relations as recognized by law, States Parties which recognize a system of adoption or other form of placement of children shall have legal procedures in place to review the adoption or placement procedure, and, where appropriate, to annul any adoption or placement of children that originated in an enforced disappearance.


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5. In all cases, and in particular in all matters relating to this article, the best interests of the child shall be a primary consideration, and a child who is capable of forming his or her own views shall have the right to express those views freely, the views of the child being given due weight in accordance with the age and maturity of the child. Part II Article 26 1. A Committee on Enforced Disappearances (hereinafter referred to as “the Committee”) shall be established to carry out the functions provided for under this Convention. The Committee shall consist of ten experts of high moral character and recognized competence in the field of human rights, who shall serve in their personal capacity and be independent and impartial. The members of the Committee shall be elected by the States Parties according to equitable geographical distribution. Due account shall be taken of the usefulness of the participation in the work of the Committee of persons having relevant legal experience and of balanced gender representation. 2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties from among their nationals, at biennial meetings of the States Parties convened by the Secretary-General of the United Nations for this purpose. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. 3. The initial election shall be held no later than six months after the date of entry into force of this Convention. Four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the State Party which nominated each candidate, and shall submit this list to all States Parties. 4. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election once. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 2 of this article. 5. If a member of the Committee dies or resigns or for any other reason can no longer perform his or her Committee duties, the State Party which nominated him or her shall, in accordance with the criteria set out in paragraph 1 of this article, appoint another candidate from among its nationals to serve out his or her term, subject to the approval of the majority of the States Parties. Such approval shall be considered to have been obtained unless half or more of the States Parties respond negatively within six weeks of having been informed by the Secretary-General of the United Nations of the proposed appointment.

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6. The Committee shall establish its own rules of procedure. 7. The Secretary-General of the United Nations shall provide the Committee with the necessary means, staff and facilities for the effective performance of its functions. The Secretary-General of the United Nations shall convene the initial meeting of the Committee. 8. The members of the Committee shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations, as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations. 9. Each State Party shall cooperate with the Committee and assist its members in the fulfilment of their mandate, to the extent of the Committee’s functions that the State Party has accepted. Article 27 A Conference of the States Parties will take place at the earliest four years and at the latest six years following the entry into force of this Convention to evaluate the functioning of the Committee and to decide, in accordance with the procedure described in article 44, paragraph 2, whether it is appropriate to transfer to another body – without excluding any possibility – the monitoring of this Convention, in accordance with the functions defined in articles 28 to 36. Article 28 1. In the framework of the competencies granted by this Convention, the Committee shall cooperate with all relevant organs, offices and specialized agencies and funds of the United Nations, with the treaty bodies instituted by international instruments, with the special procedures of the United Nations and with the relevant regional intergovernmental organizations or bodies, as well as with all relevant State institutions, agencies or offices working towards the protection of all persons against enforced disappearances. 2. As it discharges its mandate, the Committee shall consult other treaty bodies instituted by relevant international human rights instruments, in particular the Human Rights Committee instituted by the International Covenant on Civil and Political Rights, with a view to ensuring the consistency of their respective observations and recommendations. Article 29 1. Each State Party shall submit to the Committee, through the SecretaryGeneral of the United Nations, a report on the measures taken to give effect to its obligations under this Convention, within two years after the entry into force of this Convention for the State Party concerned. 2. The Secretary-General of the United Nations shall make this report available to all States Parties. 3. Each report shall be considered by the Committee, which shall issue such comments, observations or recommendations as it may deem appropriate. The comments, observations or recommendations shall be communicated to the State Party concerned, which may respond to them, on its own initiative or at the request of the Committee.


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4. The Committee may also request States Parties to provide additional information on the implementation of this Convention. Article 30 1. A request that a disappeared person should be sought and found may be submitted to the Committee, as a matter of urgency, by relatives of the disappeared person or their legal representatives, their counsel or any person authorized by them, as well as by any other person having a legitimate interest. 2. If the Committee considers that a request for urgent action submitted in pursuance of paragraph 1 of this article: (a) Is not manifestly unfounded; (b) Does not constitute an abuse of the right of submission of such requests; (c) Has already been duly presented to the competent bodies of the State Party concerned, such as those authorized to undertake investigations, where such a possibility exists; (d) Is not incompatible with the provisions of this Convention; and (e) The same matter is not being examined under another procedure of international investigation or settlement of the same nature; it shall request the State Party concerned to provide it with information on the situation of the persons sought, within a time limit set by the Committee. 3. In the light of the information provided by the State Party concerned in accordance with paragraph 2 of this article, the Committee may transmit recommendations to the State Party, including a request that the State Party should take all the necessary measures, including interim measures, to locate and protect the person concerned in accordance with this Convention and to inform the Committee, within a specified period of time, of measures taken, taking into account the urgency of the situation. The Committee shall inform the person submitting the urgent action request of its recommendations and of the information provided to it by the State as it becomes available. 4. The Committee shall continue its efforts to work with the State Party concerned for as long as the fate of the person sought remains unresolved. The person presenting the request shall be kept informed. Article 31 1. A State Party may at the time of ratification of this Convention or at any time afterwards declare that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction claiming to be victims of a violation by this State Party of provisions of this Convention. The Committee shall not admit any communication concerning a State Party which has not made such a declaration. 2. The Committee shall consider a communication inadmissible where: (a) The communication is anonymous; (b) The communication constitutes an abuse of the right of submission of such communications or is incompatible with the provisions of this Convention;

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(c) The same matter is being examined under another procedure of international investigation or settlement of the same nature; or where (d) All effective available domestic remedies have not been exhausted. This rule shall not apply where the application of the remedies is unreasonably prolonged. 3. If the Committee considers that the communication meets the requirements set out in paragraph 2 of this article, it shall transmit the communication to the State Party concerned, requesting it to provide observations and comments within a time limit set by the Committee. 4. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party will take such interim measures as may be necessary to avoid possible irreparable damage to the victims of the alleged violation. Where the Committee exercises its discretion, this does not imply a determination on admissibility or on the merits of the communication. 5. The Committee shall hold closed meetings when examining communications under the present article. It shall inform the author of a communication of the responses provided by the State Party concerned. When the Committee decides to finalize the procedure, it shall communicate its views to the State Party and to the author of the communication. Article 32 A State Party to this Convention may at any time declare that it recognizes the competence of the Committee to receive and consider communications in which a State Party claims that another State Party is not fulfilling its obligations under this Convention. The Committee shall not receive communications concerning a State Party which has not made such a declaration, nor communications from a State Party which has not made such a declaration. Article 33 1. If the Committee receives reliable information indicating that a State Party is seriously violating the provisions of this Convention, it may, after consultation with the State Party concerned, request one or more of its members to undertake a visit and report back to it without delay. 2. The Committee shall notify the State Party concerned, in writing, of its intention to organize a visit, indicating the composition of the delegation and the purpose of the visit. The State Party shall answer the Committee within a reasonable time. 3. Upon a substantiated request by the State Party, the Committee may decide to postpone or cancel its visit. 4. If the State Party agrees to the visit, the Committee and the State Party concerned shall work together to define the modalities of the visit and the State Party shall provide the Committee with all the facilities needed for the successful completion of the visit. 5. Following its visit, the Committee shall communicate to the State Party concerned its observations and recommendations.


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Article 34 If the Committee receives information which appears to it to contain wellfounded indications that enforced disappearance is being practised on a widespread or systematic basis in the territory under the jurisdiction of a State Party, it may, after seeking from the State Party concerned all relevant information on the situation, urgently bring the matter to the attention of the General Assembly of the United Nations, through the Secretary-General of the United Nations. Article 35 1. The Committee shall have competence solely in respect of enforced disappearances which commenced after the entry into force of this Convention. 2. If a State becomes a party to this Convention after its entry into force, the obligations of that State vis-à-vis the Committee shall relate only to enforced disappearances which commenced after the entry into force of this Convention for the State concerned. Article 36 1. The Committee shall submit an annual report on its activities under this Convention to the States Parties and to the General Assembly of the United Nations. 2. Before an observation on a State Party is published in the annual report, the State Party concerned shall be informed in advance and shall be given reasonable time to answer. This State Party may request the publication of its comments or observations in the report. Part III Article 37 Nothing in this Convention shall affect any provisions which are more conducive to the protection of all persons from enforced disappearance and which may be contained in: (a) The law of a State Party; (b) International law in force for that State. Article 38 1. This Convention is open for signature by all Member States of the United Nations. 2. This Convention is subject to ratification by all Member States of the United Nations. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. 3. This Convention is open to accession by all Member States of the United Nations. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General. Article 39 1. This Convention shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

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2. For each State ratifying or acceding to this Convention after the deposit of the twentieth instrument of ratification or accession, this Convention shall enter into force on the thirtieth day after the date of the deposit of that State’s instrument of ratification or accession. Article 40 The Secretary-General of the United Nations shall notify all States Members of the United Nations and all States which have signed or acceded to this Convention of the following: (a) Signatures, ratifications and accessions under article 38; (b) The date of entry into force of this Convention under article 39. Article 41 The provisions of this Convention shall apply to all parts of federal States without any limitations or exceptions. Article 42 1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation or by the procedures expressly provided for in this Convention shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court. 2. A State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not consider itself bound by paragraph 1 of this article. The other States Parties shall not be bound by paragraph 1 of this article with respect to any State Party having made such a declaration. 3. Any State Party having made a declaration in accordance with the provisions of paragraph 2 of this article may at any time withdraw this declaration by notification to the Secretary-General of the United Nations. Article 43 This Convention is without prejudice to the provisions of international humanitarian law, including the obligations of the High Contracting Parties to the four Geneva Conventions of 12 August 1949 and the two Additional Protocols thereto of 8 June 1977, or to the opportunity available to any State Party to authorize the International Committee of the Red Cross to visit places of detention in situations not covered by international humanitarian law. Article 44 1. Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties to this Convention with a request that they indicate whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one


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third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. 2. Any amendment adopted by a majority of two thirds of the States Parties present and voting at the conference shall be submitted by the Secretary-General of the United Nations to all the States Parties for acceptance. 3. An amendment adopted in accordance with paragraph 1 of this article shall enter into force when two thirds of the States Parties to this Convention have accepted it in accordance with their respective constitutional processes. 4. When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendment which they have accepted. Article 45 1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the SecretaryGeneral of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States referred to in article 38.

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Index Abu Omar 47, 52–54 AFAD (Asian Federation against Involuntary Disappearances) 65–67, 98 Afghanistan 47, 65 Africa 2–3, 63, 69–72, 98 Agiza 47, 51, 53 Akdeniz 202–204 Algeria 62, 70, 96, 127–132, 399 Algerian Six 47, 51, 53, 54 American Convention on Human Rights 96, 104, 132–188, 302, 387 Amnesty Laws (and similar measures) 3, 72, 78, 85–87, 93–94, 101, 118, 120–121, 130, 143, 145, 151, 156, 173, 186–187, 224, 252–253, 297, 320–329, 356–357, 374, 377, 399 Arbitrary Detention (see Detention) Arbitrary Executions (see Extra-judiciary executions) Arévalo 107–108 Argentina 2, 15–18, 62, 63, 75–78, 86, 96, 112–114, 138–139, 142, 180–182, 191, 253, 282, 292, 314, 321, 341, 383, 396, 399 Asia 2, 65–69, 98, 280, 397 Bámaca Velásquez 155–159, 350, 364–365 Bautista 114–116, 370 Bazorkina 212–214 Benavides Cevallos 149–150, 370–371 Blanco Romero 177–178, 296, 352, 371 Blake 146–149, 154, 168, 190, 311, 343 Bleier 96, 102–104, 370 Bolivia 2, 74, 96, 152–154, 180, 292, 358, 371 Bosnia and Herzegovina 51, 96–97, 223–244, 269, 313, 344, 353, 375–376

Boucherf 129–131 Bousroual 127–129 Burden of Proof 101–104, 107, 124, 126, 128, 131, 134, 140, 176, 190, 206, 213, 216, 218, 228, 232, 234, 241, 276–277, 344 Caballero Delgado and Santana 141–142 Çakici 192–196, 201, 203, 210, 344 Castillo Páez 143–146, 235, 350 Celis Laureano 112, 116–118, 123, 230, 234 Chechnya 64, 189, 211–220, 294 Children 1, 3, 12, 14–21, 61, 70, 75–77, 90, 92, 105, 112–114, 116, 123, 138, 156, 159, 161–162, 167, 170–174, 179, 184, 194, 211, 233, 239, 249, 253, 256, 259–260, 284, 345, 357, 365, 370, 379, 381–387, 396, 397 Chile 2, 62–63, 74, 95, 102, 119–122, 125–127, 181, 186, 188, 191, 245, 290, 292, 310, 313–314, 321, 349, 358, 396 China 65, 66, 68, 283, 297, 336 Ciçek 198–199 Colombia 2, 9, 21–25, 61–63, 72, 96, 107–109, 112, 114–116, 118, 122–123, 141–142, 163–166, 171–174, 178–180, 253, 255, 287, 292, 294–295, 318, 326, 344, 351, 366, 399 Comerciantes (19) 9, 21, 163–166, 287, 318, 372 Commission for Historical Clarification (CHC) 10, 18, 87–93, 313–315, 361–362 Commission on Human Rights 2, 31–33, 38, 65, 70, 94–95, 105, 117,

428

Index

150, 180, 245–248, 255–258, 301, 307, 327, 350, 353, 356, 359, 366, 368, 373, 384, 388–389 Committee on Enforced Disappearances 261–262, 292, 295, 314, 391–396, 397 Compensation 69–70, 86–87, 104, 111, 118, 129, 131, 136–137, 140–142, 144–145, 149, 151–152, 154, 158, 162, 173, 176, 178, 184, 188, 207, 210, 223–224, 230, 232, 235, 242, 261, 308, 323–325, 327, 343, 345–346, 355, 370–372, 374–377, 380, 399 CONADEP (Comisión Nacional sobre la Desaparición de Personas) 15, 75–78, 360–361 Continuous (Continuing) Offence 1, 101–102, 106–107, 113, 125–126, 132, 146–147, 168, 183, 201, 210, 227, 230, 233, 253, 269, 276, 295, 309–314, 324, 353, 373–374, 378, 396 Coronel 112, 116, 122–123 Council of Europe (Parliamentary Assembly) 2, 43–44, 47, 49–53, 57, 63–64, 96, 210–211, 221, 223, 260–261, 267–268, 277, 287, 306, 312, 319, 328, 334, 339, 345, 355, 375, 391, 396 Crime against Humanity 78, 86, 90, 97, 183, 187, 220, 253–255, 257, 260, 272–274, 285–295, 306–308, 312, 324, 369, 395, 398 Criminal Code 22, 53, 91–92, 146–147, 152–153, 158, 164, 175–178, 183, 215, 267, 295–296, 362, 364, 371, 374 Cyprus 54, 64, 95, 189, 199–201, 231, 233, 239, 245, 349 Dayton Peace Agreement 96, 224 Declaration on the Protection of All Persons from Enforced Disappearance (1992 Declaration) 57–58, 96, 98, 101, 107, 147, 178, 184, 230, 232, 234, 237–238, 245–252, 255, 256, 258, 260, 270, 278, 280, 288–290,

295, 297–298, 300, 303, 304, 306, 309–311, 316, 322–329, 330–332, 343, 349, 356, 364, 376, 380, 382, 387 Definition (of enforced disappearance) 33, 92, 102, 125, 128, 147, 153, 176–177, 230, 249, 253–254, 257, 259, 260–261, 267–285, 290, 295–296, 311, 341, 371, 400 Detainee 27, 29, 31–44, 46, 48, 54, 56–58, 85, 139, 154, 191, 197, 211–212, 216, 269, 329–342, 372 Detention 9, 11, 13, 15, 16, 25, 28, 29, 35–47, 49–58, 69–71, 76, 84–85, 92, 95, 102, 105, 109–110, 114, 125, 128, 131, 135, 144, 153, 156, 161, 165, 176, 177, 181, 189, 190, 193–194, 197–198, 201, 203–204, 206, 211, 213, 215–217, 221–222, 228–229, 232–234, 240, 241, 246, 248, 249, 267–275, 281, 283, 285, 305, 315, 330–341, 376, 389–390, 400 Draft Convention on the Protection of All Persons from Forced Disappearance (1998 Draft) 97, 256–258, 262, 271, 291, 293, 296, 297, 298, 300, 301, 302, 303, 304, 305, 307, 309, 311, 318, 327, 333, 344, 364, 377, 380, 383–385, 388–390 Durand and Ugarte 151–152 Ecuador 96, 149–150, 161 El Caracazo 150–151, 371 Egypt 47, 52, 70, 283, 396 Elements (constitutive) 176, 190, 271–275, 285, 341, 359 El-Megreisi 40, 109–110, 221, 332–333 El Salvador 2, 20–21, 79–87, 166–171, 253, 313, 321, 383 Europe 2, 4, 46, 50–56, 59, 63–65, 96, 188–244, 292, 349, 355, 391 European Commission on Human Rights 192, 202, 228, 231 European Convention on Human Rights 157, 188–244, 345, 353, 373 European Court of Human Rights

Index

(ECHR) 97, 157, 188–224, 234, 239, 269–270, 311, 316, 334–335, 343–344, 346, 353, 355, 372, 376, 398 Evidence 10, 18, 28–29, 39, 53, 55, 64, 75, 83, 103–104, 106–108, 112, 117, 119, 125–126, 128, 133–135, 137–138, 141, 146, 156, 160, 172, 187, 190–191, 193, 196–200, 202–203, 209, 213–214, 217–221, 228–237, 269, 354, 373, 382 Extra-judiciary (extrajudicial) Executions 24, 39, 61, 70, 75, 81–82, 88, 120, 171, 180–181, 186–187, 226, 236–237, 272, 294, 322, 327, 357, 363, 366, 400 Extraordinary Renditions 26, 42–59, 272, 339 Fairén Garbi and Solís Corrales 96, 107, 132–138 FEDEFAM 98, 255, 286, 387 Garrido and Baigorria 142–143, 370 Geneva Conventions 39, 80, 155, 158, 225–226, 245, 249, 266, 348, 358, 363 Additional Protocols of 1977 80, 158, 225, 237, 245, 249, 237, 266, 347–348, 355, 360 Germany 4–7, 52, 54 Godínez Cruz 96, 107, 132–136, 287 Goiburú 180–185, 187, 265, 285, 287, 296, 302, 371 Gómez Palomino 146, 150, 152, 174–179, 285, 296, 371–372 Grgić 231–232 Guantanamo Bay 26–43, 47, 53, 57 Guatemala 2, 10–14, 18–20, 74, 87–93, 96, 146–149, 155–163, 253–254, 311, 314, 321, 361–362, 364–365, 383, 399 Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law

(Principles on Reparation) 307, 345, 354, 378

429

150, 223,

Honduras 2, 96, 107, 132–138, 167, 182, 311, 367 Humanitarian Law 3, 58, 60, 80, 84, 158, 168, 174, 184, 188, 226, 245, 249, 266, 304, 308, 345, 354, 356–357, 363, 378, 379 Human Rights Chamber for Bosnia and Herzegovina (HRCBH) 51, 96–97, 223–244, 269, 313, 344, 353, 375–376 Human Rights Committee (HRC) 38, 56, 87, 95, 101–132, 258–259, 261, 268–269, 310, 313, 315, 322, 323, 332, 342, 349, 370, 374, 383, 389, 390, 392, 394 Imakayeva 189, 214–220, 334 Imprescriptibility 288 Impunity 3, 8, 10–11, 24, 62–63, 72, 78–81, 85–87, 94, 120, 143–146, 154, 156, 163, 175, 185, 260–261, 269, 297, 301–302, 308, 312, 314, 317, 319, 320–321, 323–324, 327–329, 349, 351, 356, 357, 398, 399 Incommunicado Detention (see Detention) Individual Complaint 262, 387, 397 Indonesia 65, 66–67, 294–295 Intentionality 282–284, 342, 400 Interamerican Commission on Human Rights 10, 40, 86–87, 252–253, 317, 342, 381–382, 387–388 Interamerican Convention on Forced Disappearances of Persons (1994 Interamerican Convention) 96, 98, 101, 107, 147, 153, 155, 157, 159, 175–178, 184, 188, 230, 252–256, 265, 270, 282, 284, 288–290, 296–298, 300–304, 306, 309, 311, 316, 326, 332, 342, 343, 349, 350, 364, 371, 377, 380, 383, 387, 388, 391 Interamerican Court of Human Rights (IACHR) 12, 61, 86, 96, 101, 132–188, 190, 192, 221, 222, 228,

430

Index

232, 234, 235, 243, 253, 265, 268, 269, 287, 296, 302, 311, 317, 326, 343, 344, 350, 359, 364, 365, 370–372, 376, 383, 387, 388, 398 Interim Measures 130, 138–139, 223, 226, 367, 383 Internal Armed Conflict 2, 3, 12, 13, 18–21, 26, 62, 63, 65, 68, 69–74, 79, 80–82, 88, 91, 93, 94, 146, 160, 161, 163, 167, 170, 171, 174, 185, 189, 201, 202, 217, 224, 226, 227, 236, 239, 279, 324, 325, 347, 348, 363, 368 International Committee for the Red Cross (ICRC) 3, 57, 94, 123, 236, 337, 347, 348, 358 International Convention on the Protection of All Persons from Enforced Disappearance (2007 Convention) 43, 49, 97–100, 102, 174, 176, 178, 180, 184, 245, 249, 253, 255–257, 261–263, 265–399 International Covenant on Civil and Political Rights (ICCPR) 33, 34, 38, 56, 80, 87, 95, 101–110, 112–131, 225, 246, 249, 258, 259, 267, 268, 309, 315, 322, 323, 358, 359, 388, 392, 394 International Criminal Court (ICC) 274–275, 295, 303, 395, 397 Rome Statute of the International Criminal Court 97, 125, 128, 254–255, 257–260, 272–279, 283, 289–293, 295, 298–299, 306, 369, 395 Intersessional Open-ended Working Group 248, 256, 258, 261–262, 282–283, 292, 297, 329, 338, 358 Ipek 208–210, 222 Iraq 62, 69, 368 Islamic Republic of Iran 62, 68, 69, 261, 297, 395, 396 Italy 52, 53, 54, 262, 292, 308, 314, 329, 396 Jegatheeswara Sarma 123–125, 313 Juan Humberto Sánchez 132, 367

Jurisdiction 26–28, 34–39, 56, 86, 119, 135, 142, 154, 161, 168, 187, 188, 232, 237, 250, 251, 253, 257, 259, 274, 280, 285, 293, 295, 299–304, 306, 316, 317–320, 322, 328, 395 Kashmir 66, 67 Kurt 97, 189–199, 206, 228, 230–231, 233–234, 343 La Cantuta 185–188, 302, 304, 327, 368, 371–372 Libyan Arab Jamahiriya 109–110 Magomadov and Magomadov 189, 211–212, 219 Mapiripán (Masacre de) 61, 78, 171–174, 318, 326, 344 Matanović 227–231 Menanteau Aceituno and Carrasco Vasquez 119–121, 321 Military Tribunals 4, 28.29, 36, 39, 101, 103, 118–121, 140, 142, 164, 173, 186–187, 216, 253–254, 314–320, 399 Mojica 110–111 Molina Theissen 159–163, 383 Mónaco 112–113, 383 Monitoring Body 258–259, 276, 314, 387–397 Morocco 47, 70 Nacht und Nebel 4–7, 397–398 National Security 7–8, 13, 28–30, 37, 41, 47, 59, 76, 89, 121, 181, 305, 334, 339–340, 397 Neira Alegría 139–140, 151, 365 Nepal 62, 63, 65, 66, 68, 294 Non Governmental Organizations 64–67, 69–70, 74–75, 97–100, 138, 212, 225, 248, 251, 255–257, 262, 287, 292, 304, 358, 389, 395, 397, 399 Non Refoulement 303 Non-State Actors 63, 260, 267, 278–282

Index

Ongoing Offence (see Continuous Offence) Operación Condor 180–185, 287 Organization of American States (OAS) 17, 80, 94–96, 252, 268, 342, 355, 381–383 Orhan 204–206 Palić 233–235 Paraguay 253 Paramilitary 8, 10–11, 19–25, 59, 66, 81–82, 89–90, 146, 163–165, 171–172, 174–175, 178–179,185, 187, 278–279, 314 Peru 2, 96, 112, 116–118, 139–141, 143–146, 151–152, 174–177, 185–188, 253, 255, 321 Philippines 62, 65–67, 281–282 Presumption of the existence of violations 111, 124, 216, 218, 229, 231, 277 of death 162, 197, 204, 213, 220 of guilt 103 Prevention (of enforced disappearances) 63, 84, 94–97, 184, 223, 250, 253, 259–260, 262, 276, 324, 327, 329, 334, 340, 361, 379, 383, 395 Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (Principles to Combat Impunity) 85–86, 94, 150, 299–300, 307, 319, 328, 353, 377–378 Provisional Measures (see Interim measures) Pueblo Bello (Masacre de) 178–180, 351, 366 Quinteros

104–107, 310

Reggiardo Tolosa 138–139 Recruitment 24, 82, 88, 381 Rehabilitation 70, 223, 323–325, 343, 368, 370, 372, 374–378, 380, 398 Remains (mortal or human) 10, 17, 77, 107, 115, 132, 139–141, 146–147, 149, 151–159, 161, 166, 171–182,

431

186–188, 223–224, 235–237, 240–241, 336–337, 346, 360–369 Reparation (forms of ) 50, 86, 101, 132, 140–142, 145, 146, 150–153, 158, 161, 162, 165, 170, 173, 174, 176, 180, 184, 186, 223, 226, 242, 243, 252, 261, 307, 323–326, 328, 337, 346, 351, 352, 354, 356, 357, 359, 362, 365–381, 396, 398 Reservations 122, 126, 168–169, 254, 262, 313, 316–317, 358 Restitution 17, 70, 139, 223, 224, 362, 367, 371–373, 375, 377, 378, 380, 382 Reversal 101–102, 104, 128, 131, 190, 209, 213, 218, 228 Russian Federation (Russia) 62–65, 189, 211–220, 222, 280, 294–295, 334, 399 Satisfaction 70, 77, 173, 196, 201, 223, 224, 243, 354, 370, 372–375, 377, 378, 380, 398 Secret Detention (see Detention) Selimović (Srebrenica cases) 235–244, 376 Serb Republic 223–244, 376 Serrano Cruz (Hermanas) 166–171, 313, 383 Sri Lanka 65, 66, 69, 96, 123–125, 313 Statute of Limitation 153, 171, 173, 252, 285, 291, 306–313, 323, 324, 326, 377 Summary Executions (see Extra-judiciary executions) Sudan 62, 63, 71, 72 Superior Orders 6, 7, 39, 40, 84, 92, 115, 149, 298–300 Sweden 51, 53 Syria 47, 290 Systematic Practice (Widespread) 2, 8, 10, 11, 14, 16, 20, 62, 64, 70, 72, 80, 81, 88, 89, 97, 106, 156, 181, 183, 187, 188, 191, 197, 200, 220, 221, 222, 246, 253, 254, 257, 260, 272, 275, 287–295, 306, 314, 321, 324, 354, 387, 389, 395, 398

432

Index

Tashin Acar 206–208 Tekdag 208–209 Terrorism 8, 11, 25–62, 77, 85, 139, 143, 183, 216, 287, 335 Timor-Leste (Timor East) 65–66, 294–295 Timurtas 196–199, 202, 217, 311 Torture 1, 8, 9, 11, 12, 14, 15, 17, 25, 26, 30, 32, 33, 34, 39, 40, 42, 43, 44, 46, 48, 51, 52, 55, 56, 58, 61, 64, 67, 71, 75, 77, 81, 88, 91, 93, 95–96, 103, 105, 106, 108, 109, 116, 118, 119, 122, 125, 128, 129, 131, 135, 141, 144, 149, 153, 155, 156, 157, 160, 161, 164, 177, 178, 181, 182, 184, 189, 191, 193, 195, 198, 201, 203, 204, 207, 209, 210, 212, 214, 218, 221, 222, 225, 227, 228, 230, 233, 234, 237, 243, 246, 249, 250, 256, 259, 267, 270, 277, 280, 286, 295, 301, 304, 321, 322, 326, 332, 342, 343, 345, 349, 353, 357, 381, 389, 390 Trujillo Oroza 152–154, 161, 371 Truth (right to) 2, 14, 15, 47, 92, 93, 101, 106, 144, 145, 151, 155, 157–158, 173, 175, 179, 180, 184, 191, 223, 226, 227, 234, 235, 239, 243, 324–325, 329, 334, 339, 346, 347–360, 362, 380, 396, 398 Truth and Reconciliation Commissions 3, 20, 66, 72–94, 120–121, 167, 184, 186, 294, 360, 374, 399 Tshishimbi 111–112 Turkey 54, 64, 97, 157, 188–211, 218, 220, 221, 231, 233, 239, 311

United Kingdom 43, 53–55, 64, 266, 283–285, 290, 341, 348, 386 United Nations Working Group on Enforced or Involuntary Disappearance (UNGWEID) 2–3, 21–24, 57–59, 62–63, 65, 68, 70, 72, 94–95, 100, 117, 163, 247–258, 251–252, 255–257, 260, 270–271, 279, 294–295, 310, 319, 323, 327, 329, 331, 349, 356, 368, 376, 384, 387–389, 399–400 United States of America 25–62, 266, 282, 283, 293, 296, 302, 337, 348, 358, 380, 386 Universal jurisdiction 257, 285, 301 Unlawful transfer/arrest 53–54, 207, 231, 241 Uruguay 2, 62, 96, 102–107, 181, 253, 310 Vargas Vargas 121 Velásquez Rodríguez 96, 104, 132–136, 228, 230, 311 Venezuela 79, 90, 96, 104–105, 150–151, 163–164, 177–178, 253, 296, 352 Vicente 118–119 War crimes 274, 399 Widespread Practice (see Systematic Practice) Yugoslavia (former) 65, 224–244 Yurich 102, 125–126, 313 Zaire

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