By Yuria Saveedra-Alvarez
Yuria Saveedra-Alvarez is a Mexican lawyer holding an LLM in the International and European Protection of Human Rights from Utrecht University. She has formerly worked for the Mexican Ministry of Foreign Affairs and is currently a visiting researcher at the Inter-American Court of Human Rights. Saveedra-Alvarez was also involved in the investigation into the disappearance of hundreds of women in Juarez, Mexio.
Enforced (or “forced”) disappearance of people has been a common practice from the 20th century in different regions around the world. According to Manfred Nowak, this practice was conceived of by Adolf Hitler in the Night and Fog Decree of 7 December 1941, a secret order under which “persons endangering German security” in the German-occupied territories of western Europe were to be arrested and either shot or spirited away under cover of “night and fog”, meaning clandestinely, to concentration camps.[1] For achieving the aim of intimidation it was prohibited to provide any information on the whereabouts of the victims.[2] More recently, forced disappearance of persons took on particular features and became evident in Latin America from the seventies. This phenomenon arises as the most effective repressive method against opponents to a given authoritarian regime.
The U.N. Declaration on the Protection of all Persons from Enforced Disappearances portrays “disappeared persons” as those who are arrested, detained, or abducted against their will or otherwise deprived of liberty by government officials, or by organized groups or private individuals acting on behalf of, or with the direct or indirect support, consent, or acquiescence of the government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or by a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.
[3] Along the same lines, the Inter-American Convention on Forced Disappearance of People describes this conduct as:
[…] the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated 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 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.
[4]
Likewise, the recently adopted U.N. International Convention for the Protection of All Persons from Enforced Disappearance regards this practice as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
[5]
According to the definitions provided, the distinctive traits of the practice of forced disappearance of persons are:
a) deprivation of freedom
b) participation of the State in any form
c) concealment of the victim
d) co-participation
e) premeditation
However, what makes the forced disappearance of people one of the most grave crimes is the fact that the person is not only deprived of his/her freedom, even from his/her life, but that it is carried out furtively, without trace of his/her fate. Moreover, there is no real opportunity of demonstrating that the person has been disappeared for the very reason that this practice has been designed to limit and hinder the protection of law and the state’s institutions and, therefore, for leaving disappeared persons defenceless. This constitutes a multiple and continuous violation of several non-derogable and basic human rights such as to life, to personal integrity and to personal freedom.
[6] On the other hand, the effects of these violations extend to the victims next of kins´ right to mental and moral integrity since they produce ¨(…) severe anguish owing to the act itself, which is increased, among other factors, by the constant refusal of the State authorities to provide information on the whereabouts of the victim or to open an effective investigation to clarify what occurred¨.
[7]
Precisely due to its seriousness, under certain circumstances (such as a systematic practice), the forced disappearance of people is now considered as a crime against humanity
[8] and a norm of
jus cogens – or peremptory norm.
[1] Night and Fog Decree. In Encyclopædia Britannica. Retrieved August 8, 2007, from Encyclopædia Britannica Online: http://www.britannica.com/eb/article-9055808
[2] Cfr. United Nations Commission on Human Rights, “Report submitted January 8, 2002, 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 disappearance, pursuant to paragraph 11 of Commission Resolution 2001/46”, E/CN.4/2002/71, p. 6.
[3] A/RES/47/133, 18 December 1992, Preamble, par. 3.
[4] Adopted in Belém do Pará, Brazil, on 19 June 1994, during the 24th ordinary session of the General Assembly, Article II.
[5] A/HRC/1/L.2, 22 June 2006, Article 2.
[6] Perhaps it is the Inter-American Court of Human Rights the international body that has produced a vast jurisprudence on this topic. See, for instance, its very first contentious case Velásquez Rodríguez Vs Honduras, Judgement of 29 July 1988, pars. 155-158.
[7] See a recent decision of the Inter-American Court of Human Rights, Case of Goiburú et. al. Vs Paraguay, Judgement of 22 September 2006, par. 97.
[8] Par. 6º of the UN International Convention on the Protection of all Persons against Forced Disappearance and par. 7o of the Inter-American Convention on Forced Disappearance of People.