Download Untitled - Corte Interamericana de Derechos Humanos

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
viii
Contents
9
10
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
6
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
x
Contents
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
xvi
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.
4
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
5
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).
6
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
7
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
Scovazzi & Citroni – Chapter I
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
The Dimension and Purposes of Enforced Disappearance
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
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
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
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
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
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
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
Scovazzi & Citroni – Chapter I
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”.
The Dimension and Purposes of Enforced Disappearance
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
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
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
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
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
Scovazzi & Citroni – Chapter I
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
The Dimension and Purposes of Enforced Disappearance
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
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
25
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.
26
Scovazzi & Citroni – Chapter I
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
The Dimension and Purposes of Enforced Disappearance
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
Scovazzi & Citroni – Chapter I
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).
The Dimension and Purposes of Enforced Disappearance
29
(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
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
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.
32
Scovazzi & Citroni – Chapter I
(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.
The Dimension and Purposes of Enforced Disappearance
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
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
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).
36
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
37
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.
38
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
39
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).
40
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
41
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.
42
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
43
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.
44
Scovazzi & Citroni – Chapter I
[. . .] 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.
The Dimension and Purposes of Enforced Disappearance
45
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.
46
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
47
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
48
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
49
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).
50
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
51
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).
52
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
53
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.
54
Scovazzi & Citroni – Chapter I
–
–
–
–
–
–
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.
The Dimension and Purposes of Enforced Disappearance
55
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.
56
Scovazzi & Citroni – Chapter I
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).
The Dimension and Purposes of Enforced Disappearance
57
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.
58
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
59
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.
60
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
61
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.
62
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
63
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.
64
Scovazzi & Citroni – Chapter I
[. . .] 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.
The Dimension and Purposes of Enforced Disappearance
65
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.
66
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
67
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.
68
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
69
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,
70
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
71
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”.
72
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
73
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
74
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
1.8.A
75
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”.
76
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
77
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.
78
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
1.8.B
79
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”.
80
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
81
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
82
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
83
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.
84
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
85
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
86
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
87
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.
88
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
89
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).
90
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
91
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.
92
Scovazzi & Citroni – Chapter I
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”.
The Dimension and Purposes of Enforced Disappearance
93
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.
94
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
95
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.
96
Scovazzi & Citroni – Chapter I
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.
The Dimension and Purposes of Enforced Disappearance
97
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.
98
Scovazzi & Citroni – Chapter I
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
The Dimension and Purposes of Enforced Disappearance
99
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.
100
Scovazzi & Citroni – Chapter I
–
–
–
–
–
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
102
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
103
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
104
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
105
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.
106
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
107
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.
108
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
2.2.D
109
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.
110
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
111
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.
112
Scovazzi & Citroni – Chapter II
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).
International Case Law on Enforced Disappearance
113
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.
114
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
115
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
116
Scovazzi & Citroni – Chapter II
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).
International Case Law on Enforced Disappearance
117
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.
118
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
119
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.
120
Scovazzi & Citroni – Chapter II
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).
International Case Law on Enforced Disappearance
121
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.
122
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
123
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).
124
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
125
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.
126
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
2.2.P
127
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.
128
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
129
(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
130
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
131
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.
132
2.3
Scovazzi & Citroni – Chapter II
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
International Case Law on Enforced Disappearance
133
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.
134
Scovazzi & Citroni – Chapter II
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
International Case Law on Enforced Disappearance
135
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
136
Scovazzi & Citroni – Chapter II
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).
International Case Law on Enforced Disappearance
137
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).
138
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
139
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
140
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
141
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).
142
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
2.3.H
143
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.
144
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
145
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).
146
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
147
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
148
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
149
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.
150
Scovazzi & Citroni – Chapter II
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).
International Case Law on Enforced Disappearance
151
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.
152
Scovazzi & Citroni – Chapter II
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).
International Case Law on Enforced Disappearance
153
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.
154
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
2.3.N
155
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).
156
Scovazzi & Citroni – Chapter II
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
International Case Law on Enforced Disappearance
157
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.
158
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
159
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).
160
Scovazzi & Citroni – Chapter II
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
International Case Law on Enforced Disappearance
161
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).
162
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
163
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.
164
Scovazzi & Citroni – Chapter II
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).
International Case Law on Enforced Disappearance
165
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).
166
Scovazzi & Citroni – Chapter II
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).
International Case Law on Enforced Disappearance
167
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
168
Scovazzi & Citroni – Chapter II
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
148
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.
International Case Law on Enforced Disappearance
169
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
170
Scovazzi & Citroni – Chapter II
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
152
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.
International Case Law on Enforced Disappearance
171
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).
172
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
173
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.
174
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
175
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.
176
Scovazzi & Citroni – Chapter II
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
International Case Law on Enforced Disappearance
177
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.
178
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
179
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.
180
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
181
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
Scovazzi & Citroni – Chapter II
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-
International Case Law on Enforced Disappearance
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
184
Scovazzi & Citroni – Chapter II
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).
International Case Law on Enforced Disappearance
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.
186
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
187
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.
188
Scovazzi & Citroni – Chapter II
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
International Case Law on Enforced Disappearance
189
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.
190
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
191
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.
192
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
193
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”.
194
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
195
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.
196
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
197
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.
198
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
199
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.
200
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
201
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.
202
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
203
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.
204
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
205
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.
206
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
207
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.
208
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
209
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.
210
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
211
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.
212
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
213
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.
214
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
215
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).
216
Scovazzi & Citroni – Chapter II
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
International Case Law on Enforced Disappearance
217
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.
218
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
219
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.
220
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
221
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
222
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
223
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.
224
Scovazzi & Citroni – Chapter II
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
International Case Law on Enforced Disappearance
225
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.
226
Scovazzi & Citroni – Chapter II
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).
International Case Law on Enforced Disappearance
227
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).
228
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
229
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.
230
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
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).
232
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
233
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).
234
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
235
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.
236
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
237
(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.
238
Scovazzi & Citroni – Chapter II
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
International Case Law on Enforced Disappearance
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.
240
Scovazzi & Citroni – Chapter II
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.
International Case Law on Enforced Disappearance
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.
242
Scovazzi & Citroni – Chapter II
–
–
–
–
–
–
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.
International Case Law on Enforced Disappearance
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).
244
2.6
Scovazzi & Citroni – Chapter II
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.
246
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.
248
Scovazzi & Citroni – Chapter III
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.
Existing International Legal Framework on Enforced Disappearance
3.1.B
249
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”.
250
Scovazzi & Citroni – Chapter III
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.
Existing International Legal Framework on Enforced Disappearance
251
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
252
Scovazzi & Citroni – Chapter III
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.
Existing International Legal Framework on Enforced Disappearance
253
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.
254
Scovazzi & Citroni – Chapter III
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.
Existing International Legal Framework on Enforced Disappearance
255
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.
256
Scovazzi & Citroni – Chapter III
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.
Existing International Legal Framework on Enforced Disappearance
257
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
258
Scovazzi & Citroni – Chapter III
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.
Existing International Legal Framework on Enforced Disappearance
259
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).
260
Scovazzi & Citroni – Chapter III
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.
Existing International Legal Framework on Enforced Disappearance
261
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.
262
Scovazzi & Citroni – Chapter III
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.
Existing International Legal Framework on Enforced Disappearance
263
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.
266
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
267
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”.
268
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
269
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.
270
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
271
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.
272
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
273
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.
274
Scovazzi & Citroni – Chapter IV
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
The 2007 Convention and Its Main Legal Issues
4.
5.
6.
7.
8.
275
(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
276
Scovazzi & Citroni – Chapter IV
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
The 2007 Convention and Its Main Legal Issues
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.
278
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
279
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.
280
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
281
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.
282
Scovazzi & Citroni – Chapter IV
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).
The 2007 Convention and Its Main Legal Issues
283
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.
284
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
285
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
286
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
287
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
288
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
289
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.
290
Scovazzi & Citroni – Chapter IV
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).
The 2007 Convention and Its Main Legal Issues
291
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.
292
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
293
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.
294
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
295
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
296
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
297
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).
298
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
299
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).
300
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
301
(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).
302
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
303
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.
304
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
305
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.
306
4.5
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
307
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.
308
Scovazzi & Citroni – Chapter IV
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).
The 2007 Convention and Its Main Legal Issues
309
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
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
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
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
313
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.
314
Scovazzi & Citroni – Chapter IV
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
The 2007 Convention and Its Main Legal Issues
315
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
154
155
156
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.
316
Scovazzi & Citroni – Chapter IV
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
The 2007 Convention and Its Main Legal Issues
317
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.
318
Scovazzi & Citroni – Chapter IV
[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.
The 2007 Convention and Its Main Legal Issues
319
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”.
320
Scovazzi & Citroni – Chapter IV
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).
The 2007 Convention and Its Main Legal Issues
321
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
171
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).
322
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
323
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;
324
Scovazzi & Citroni – Chapter IV
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
The 2007 Convention and Its Main Legal Issues
325
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.
326
Scovazzi & Citroni – Chapter IV
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
179
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
The 2007 Convention and Its Main Legal Issues
327
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
182
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.
328
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
329
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.
330
Scovazzi & Citroni – Chapter IV
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
The 2007 Convention and Its Main Legal Issues
331
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
332
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
333
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; [. . .]
334
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
335
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.
336
Scovazzi & Citroni – Chapter IV
(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).
The 2007 Convention and Its Main Legal Issues
337
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.
338
Scovazzi & Citroni – Chapter IV
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”.
The 2007 Convention and Its Main Legal Issues
339
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.
340
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
341
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.
342
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
343
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.
344
Scovazzi & Citroni – Chapter IV
[. . .] 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.
The 2007 Convention and Its Main Legal Issues
345
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.
346
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
347
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.
348
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
349
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.
350
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
351
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
352
Scovazzi & Citroni – Chapter IV
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).
The 2007 Convention and Its Main Legal Issues
353
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.
354
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
355
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.
356
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
357
[. . .] 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.
358
Scovazzi & Citroni – Chapter IV
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).
The 2007 Convention and Its Main Legal Issues
359
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.
360
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
361
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.
362
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
363
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.
364
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
365
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).
366
Scovazzi & Citroni – Chapter IV
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).
The 2007 Convention and Its Main Legal Issues
367
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.
368
Scovazzi & Citroni – Chapter IV
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
The 2007 Convention and Its Main Legal Issues
369
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”.
370
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
371
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.
372
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
373
“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.
374
Scovazzi & Citroni – Chapter IV
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
The 2007 Convention and Its Main Legal Issues
375
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.
376
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
377
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.
378
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
379
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:
380
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
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.
382
Scovazzi & Citroni – Chapter IV
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.
The 2007 Convention and Its Main Legal Issues
383
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.
384
Scovazzi & Citroni – Chapter IV
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
The 2007 Convention and Its Main Legal Issues
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, i